THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


("A^^^^^^^^^      \^-^d-ex,^^^^ 


SELECTED 

CASES  ON  EQUITY 


BY 


GEORGE  L.  CLARK 

Author  of  *  Principles  of  Equity  ' 


PART  I— CHAPTERS  I  TO  IV. 


1921 

E.  W.  STEPHENS  PUBLISHING  COMPANY 
Columbia,  Missouri 


r 

C5-, 


Copyright  1921 

BY 

George  L.  Clark. 


bo 


TABLE  OF  CONTENTS 


h 


PART  I. 


CHAPTER  I. 
Introductiox     I 

CHAPTER  II. 

Specific  Pe^iformance  of  Contracts    30 

Section  1.     In  General    30 

Section  2.     Affirmative  Contracts    39 

Section  3.     Negative  Contracts    65 

Section  4.     Relief  For  and  Against  Third  Persons — Equitable  Servi- 
tudes      83 

Section  5.     Consequences  of  Right  of  Specific  Performances   120 

Section  6.     Partial  Performance  with  Compensation    144 

Section  7.     Defenses   152 

CHAPTER  III. 

Specific  Reparation  and  Prevextiox  of  Torts   225 

Section  1.     Waste    225 

Section  2.     Trespass    237 

Section  3.     Private  Nuisance   255 

Section  4.     Disturbance  of  Private  Easements  285 

Section  5.     Obstruction  of  Public  Rights    296 

Section  6.      Public   Nuisance    300 

Section  7.     Common  Law  Copyright — Statutory  Monopolies    316 

Section  8.     Interference  with   Trade   Interests — Fraud    331 

Section  9.     Interference  with  Contract  and   Business  Relations   . . .  .344 

Section  10.   Defamation — Interference  with   Privacy    36 1 

Section  11.  Interference    with    Domestic,    Social,     and     Political     Re- 
lations    381 

CHAPTER  IV. 
Pkeventio.x  of  Crimes  and  Crlmixai.  Prockedinos   391 

(III) 


67irm2 


TABLE  OF  CASES 


Adams,   Taylor  v.   228 

Amer.  Law  Book  Co.  v.  Edward 
Thompson   Co.    344 

Amer.  Soc'y  etc.,   Davis  v. 393 

.A.naconda,  etc.  Co.,  Bliss  v. 283 

Appleton,  Robinson  v. 91 

Arizona  Ins.  Ag'y,  Bisbee  v. 396 


Babcock  v.  McCamant 23 

Badger  v.    Boardman 98 

Baghurst,  Nibert  v. 158 

Bailey  v.  Duncan 133 

Baker,   Rhoten  v. 23 

Baltimore    Coal    Tar    Co.,    Equi- 
table Gas  Co.  V. 54 

Bangor,  etc.  R.  R.,  Coding  v.  ___  211 

Barton,    Lippincott    v.    234 

Bastable,  Pearce  v. 84 

Bennet,   Lawes   v.    130 

Betts  V.   DeVitre  324 

Birch,  Hercy  v. 28 

Bisbee  v.  Arizona  Ins.  Ag'y 396 

Bishop  V.   Newton 187 

Blew  V.    McClelland 139 

Bliss  V.   Anaconda  etc.   Co. 283 

Block   V.    Alorrison    136 

Boardman,  Badger  v. 98 

Bodwell  V.    Bodwell   181 

Boeckler  v.  Mo.  Pac.  Ry.  Co.  __  245 

Brande  v.    Grace   287 

Brewer  v.    Marshall   113 

Bridgman,  Sturges  v. 261 

Brown  v.   Smith 199 

Brown,  Wannamaker  v. 149 

Buchan,   Marsh  v.   198 

Buck,  Tuttle  v. 360 

Bucklev,   Hill  v. 145 

Buck-land  v.  Hall 182 

Bull,  Logan  &  wife  v. 223 

Burnham,   Fleming  v. 155 

Burrell,    Krehl    v.    292 

Byrnes,  Jackson  v.   66 

Caldwell   v.   Depew  206 

Campbell    v.    Gilman    5 

Carpenter  v.  Mutual  Co. 48 

Caton  V.  Caton 163 

C,  B.  &  Q.  R.  R.  V.  Reno 208 

Charlcss,  Rankin  v. 255 

Cheuvronts,  Dees  v. 249 

Chubb    V.    Peckham    213 

(v) 


Clegg  V.   Hands 101 

Cloyd  V.   Trotter   9 

Cobb    V.    Saxby    294 

Cohn,   Day  v.   195 

Coles  V.  Feeny 122 

Combs  V.   Fisher   141 

Com'th  V.  McGovern 306 

Continental    Paper    Bag    Co.    v. 

Eastern  Paper  Bag  Co. 326 

Cooper  V.  Jarman 125 

Corbin  v.  Tracy 43 

Cornellier      v.      Haverhill      Shoe 

Mfrs.   Ass'n   353 

Crabtree  v.  Welles  157 

Crisp,  Joyner  v. 147 

Crocker  v.    Manhattan   Life   Ins. 

Co.    244 

Crossett,   Owens  v. 253 

Daly  V.  Smith 72 

Daniel  v.  Ferguson 290 

Daniels  v.  Davison  83 

Darst  V.   Kirk 30 

Daughetee,  Ohio  Oil  Co.  v. 225 

Davenport,   Paddock  v.    38 

Davis  v.  Am.  Soc'y  etc. 393 

Davis,  Sawyer  v.   264 

Davison,    Daniels  v.    83 

Day  V.   Cohn 195 

Day,   Sprake  v.   127 

Dees  V.  Cheuvronts 249 

DeHeld,  Soltau  v. 275 

Depcw,    Caldwell   v.    206 

DeVitre,    Betts   v.    324 

Dickenson     v.     Grand     Junction 

Canal  Co.  100 

Dills  v.  Doebler 35 

Dockstader   v.    Reed   81 

Doebler,   Dills   v.    35 

Dr.    Miles    Medical    Co.   v.    Park 

&  Sons  Co.   115 

Dressel  v.  Jordan 222 

Duffy  v.   Kelly   n» 

Duncan,   Bailey  v.   133 

Durrett  v.   Hook  205 

Eastern    Paper    Bag    Co.,    Conti- 
nental Paper  Bag  Co.  v. 326 

Eaton  V.   McCall   6 

Edelen,    ITampson   v.    136 

Edward    Thompson    Co.,    Amer. 
Law  Book  Co.  v. 344 


VI 


TABLE   OF    CASES. 


Edwards  v.   West   142 

RlHce,    Potter   v.    124 

Ellis  V.  K.  C.  R.  R 269 

Emack  v.    Kane   304 

Englc  V.   Walsh   385 

Equitable  Gas  Light  Co.  v.  Balti- 
more Coal  Tar  Co. 54 

Everett  v.  Paschall 300 

Feeny,   Coles   v.    122 

Ferguson,   Daniel  v.   290 

Fessler  v.  Town  of  Union 296 

Fisher,    Combs   v.    141 

Flansburg,  Powers  v. 391 

Fleming  v.  Burnham 155 

Fobes,   Leach  v.   41 

Foote,  Parker  &  Edgarton  v. 285 

P'oster   V.    Kimmons    37 

French,   Webster   v.    193 

Fuelle,  Lohse  Pat.  Door  Co.  v.--  350 
Fullerton,   Pomcroy  v.   188 

Gartrell    v.    Stafford    39 

Georgia  v.  Tennessee  Copper  Co.  309 

Gerard  v.  Lehigh  Stone  Co. 173 

Gibson.   Whatman   v.    91 

Giles    V.    Walker    259 

Gilman,  Campbell  v. 5 

Gladville  v.   McDole 167 

Coding  V.  Bangor,  etc.  R.  R.  .--  211 

Gottschalk   v.    Stein    46 

Gould    V.    Partridge    104 

Grace,   Brande  v.   _—-  287 

Grand  Junction  Canal  Co.,  Dick- 
enson  V.    100 

Green   v.    Green    176 

Great  Falls  Mfg.  Co.  v.  Worster     12 

Gruban,   Kirchner  v. 79 

Guard   v.    Whiteside   65 

Gupton  V.   Gupton 85 

Gwathney  v.  Stump 1 

Hale  V.  Hale 161 

Hall,_  Buckland  v.   182 

Hamilton-Brown     Shoe     Co.     v. 

Saxey    346 

Hammond,  Port  Royal  Co.  v.  __     20 

Hampson  v.   Edelen    136 

Hands,    Clegg   v. 101 

Hanson,   Johnson  v.    173 

Harper  v.   Virginian  Ry.  Co. 60 

Harris,    Munden   v.    371 

Hartman  v.  Wells 93 

Haskins    v.    Rvan    316 

Hatton  V.  K.  C.  etc.  R.  R. 254 

Haverhill  Shoe  Mfrs.  Ass'n,  Cor- 

nellier  v.   35.3 

Havertv,  Murray  v. 232 

Hawarden  v.   Y.   &  L.   Coal  Co.  357 

Hellriegel   v.   Manning 138 

Hercy   v.    Birch    28 

Herrick,  Morrison  v.   160 


Hetfield    v.    Willey    200 

Hill   V.    Buckley    145 

llodgdon,  Mansfield  v. 153 

Hoffman,   Tabor  v.   331 

Home  Land  Co.,  McNamara  v.  _     42 

Hook,    Dm-rett    v.    205 

Horse  Shoe  Club  v.  Stewart 400 

Florsley,    Woolums   v.    153 

Howley,   Kearns   v.   387 

Hoyt   V.    Tuxbury    192 

Hughes,  Webb  v. 196 


Isaacs   V.    Skrainka 


203 


Jackson   v.    Byrnes    66 

Jarman,    Cooper   v.    125 

Jaynes   &  Co.,   Regis  v. 335 

Johnson  v.  Hanson 173 

Jordan,    Dressel    v.    222 

Joyner   v.    Crisp   147 

Kane,   Emack  v. 364 

Kansas  City,  etc.  R.  R.,  Ellis  v.  254 
Kansas  City,  etc.   R.   R.,  Hatton 

V.     269 

Kavanaugh,  Royal  League  v.  —     16 

Kearns  v.  Howley 387 

Kellar,  Watts  v. 220 

Kelly,    Duffy   v.    178 

Kimmons,   Foster  v. 37 

King    V.    Smith    231 

King  V.   Stuart   237 

Kirchner   v.    Gruban   79 

Kirk,    Darst   v.    30 

Kiser,   O'Kane  v. 144 

Kline   Drummond   Co.,  St.   Louis 

Range  Co.  v. 31 

Kosminski,  Kuzniak  v. 271 

Krehl   v.    Burrell    292 

Kuzniak    v.    Kosminski    271 

Ladd  V.   Osborne 241 

Langford   v.    Pitt   120 

Lansdowne  v.  Lansdowne 235 

Lawes  V.    Bennett   130 

Leaycraft,   McCIure  v.   108 

Leach  v.  Fobes 41 

Lechmere,    Lewis   v.    45 

Lehigh  Stone  Co.,  Gerard  v.  —  173 

Lewis  v.   Lechmere 45 

Lincoln,    Murphey   v.    241 

Lippincott   v.    Barton   234 

Logan  &  Wife  v.   Bull 223 

Lohse  Pat.  Door  Co.  v.  Fuelle  __  350 

Losee  v.   Morey  40 

Lyons,    Pyatt    v.    186 

McCall,    Eaton   v.    6 

McCamant,   Babcock  v. 22 

McClelland,    Blew   v.    139 

McClure   v.   Leaycraft   108 

McDole,  Gladville  v. 167 


TABLE  OF  CASES. 


VII 


McGovern,   Comth  v. 306 

Mclntyre.    Whipple   v.    257 

McXamara  v.  Home  Land  Co.  __     42 

Magloughlin,    Scott   v.    27 

Manhattan  Life  Ins.  Co.,  Crocker 

V.     244 

Manning,    Hellreigel   v.    138 

Mansfield  v.  Hodgdon 153 

Marchant,    Roberts   v.    123 

Marsh   v.    Buchan    198 

Marshall,   Brewer  v. 113 

Meves,    Thurber   v.    218 

Meyer,   Ullsperger   v.    216 

Meyer,    Weis    v.    89 

Midglev,    Wood   v.    175 

Milligan,   Nelson  v. 278 

Missouri  Pac.   Ry.   Co.,  Boeckler 

V. 245 

Morey,   Losee   v.    40 

Morris  v.   Morris 229 

Morris    v.    Parry    24 

Morrison,   Block  v.   136 

Morrison  v.   Herrick 160 

Moss   &  Raley  v.  Wren 33 

Munden  v.   Harris   371 

Murphey    v.    Lincoln    241 

Murray   v.    Haverty    232 

Mutual  Co.,  Carpenter  v.   48 

Myers,  National  Life  Ins.  Co.  v.  368 

National  Life   Ins.   Co.  v.   Myers  368 

Nelson   v.    Milligan   278 

Newton,    Bishop   v.    187 

Newton    v.    Newton    129 

Nibert  v.   Baghurst 158 

Nisbett  &  Potts  Contract,  In  re  95 
Norfolk,    Peabody    v.    68 

Ohio   Oil   Co.   V.   Daughetee 225 

Ohio  Oil  Co..  State  v. 298 

O'Kane    v.    Kiser   144 

O'Neill  V.   Webb   55 

Osborne,   Ladd   v.   241 

Overbaugh,   Young  v.    170 

Owens   V.    Crossett    253 

Paddock    v.    Davenport    38 

Pansette,  Savings  Bank  Co.  v.  _  150 
Park    &     Sons     Co.,    Dr.     Miles 

Medical  Co.  v. 115 

Parker  &  Edgarton  v.  Foote 285 

Parkhurst.  Warren  v. 272 

Parry,    Morris   v.    24 

Partridge,    Gould   v.    104 

Paschall,    Everett  v.   300 

Peabody   v.    Norfolk 68 

Pearce   v.    Bastable    84 

Peckham,    Chubb   v.    213 

Pennis,    Stuart    v.    50 

Pennsylvania,  etc.  R.  R.,  Toledo, 

etc.   R.  }i.  v.   24 


Peters,   Wheaton   v.    322 

Pierce,  World's  Dispensary  Med. 

Ass'n    V.    339 

Pitt,    Langford    v.    ...--  120 

Pomeroy  v.  Fullerton 188 

Portland,   etc.    R.    R.,   Sullivan  v.  26 

Port  Royal  Co.  v.  Hammond  —  20 

Potter   v.    Ellice   124 

Potter  V.   Whitten   3 

Powell  V.  Santa  Fe  R.   R. 58 

Powers   V.    Flansburg 391 

Pyatt   V.    Lyons    186 

Rankin  v.   Charless 255 

Rector   of    St.    David's   v.    Wood     53 

Reed,    Dockstader    v.    81 

Regis  v.  Javnes  &  Co. 335 

Reno,  C,  B.  &  Q.   R.   R.  v.  -—     23 

Rhoten   v.    Baker   23 

Roberts  v.  Marchant 123 

Roberts   v.    Scull    105 

Robinson   v.    Appleton   91 

Routh   V.   Webster 343 

Roval   League  v.   Kavanaugh  ___     16 

Rutherford   v.   Stewart 47 

Ryan,    Haskins   v.    316 

St.    Louis    Range    Co.    v.    Kline 

Drummond    Co.    31 

Santa  Fe  R.  R.,  Powell  v. 58 

Savings  Bank  Co.  v.  Parisette  _-   150 

Sawver   v.    Davis   264 

Saxby,    Cobb   v.    294 

Saxey,      Hamilton-Brown      Shoe 

Co.    v.    346 

Scott  V.   Magloughlin   27 

Scull.   Roberts   v.    105 

Shubert  v.   Woodward 56 

Skrainka,   Isaacs  v.   203 

Slingerland   v.    Slingerland 165 

Smith,   Brown   v.    199 

Smith,   Daly   v.   72 

Smith,   King  v. 231 

Smith,  Wells  v.   190 

Snetzer,   Snook   v.   19 

Snook  V.   Snetzer 19 

Soltau  V.    DeHeld   275 

Sprake  v.   Day   127 

Stafiford,   Gartrell  v.   39 

Starr  v.  Woodbury  Glass  Works  242 

State  V.  Ohio  Oil  Co. 298 

Stein,    Gottschalk   v.    46 

Stewart,   Horse  Shoe   Club  v.   ._  400 

Stewart,    Rutherford   v.    47 

Stewart,   Turner  v.  , 247 

Strohmaier  v.   Zeppenfeld 162 

Stuart,    King   v.    237 

Stuart  v.  Pennis ■''0 

Stump,  Gwathncy  v. 1 

Sturgcs   V.    Bridgman   261 

Sullivan  v.  Portland  etc.  R.  R.  --     26 


VIII 


TABLE   OF   CASES. 


Tabor    v.    HotTniaii    331 

Taylor    v.    Adams   228 

Tennessee    Copper   Co.,    Georgia 

V.     309 

Thompson   v.   Winter 184 

Tlnirbcr  v.   Mcvcs 218 

Toledo  etc.    K.   R.  v.   Pa.  etc.  R. 

R.    24 

Town  of  Union,  Fessler  v. 296 

Tracy.   Corbin   v.   43 

Trotter,    Cloyd    v.    9 

Tumbnson    v.    York   152 

Turner   v.    Stewart    247 

Tuttle   V.   Buck 360 

Tuxbury,    Moyt    v.    192 

Ullsperger  v.   ^[eyer 216 

Union     Bag     &     Paper     Co.,     v. 

Whalen    v.    280 

Union  Ry.  Co.,  Whitney  v. 117 

\'irginia  R'y  Co.,  Harper  v. 60 

Walcott  V.  Walker   330 

Walker.   Giles  v.    259 

Walker.    Walcott   v.    330 

Walsh.    Kngle   v.    385 

Wannamaker  v.  Brown 149 

Warfield,    Ex    parte    381 

Warfield-Howell  Co.  v.  William- 
son           4 

Warlier  v.   Williams 251 

Warren  v.   Parkhurst 272 

Washburn    Iron   Co.,   Wesson  v.  313 

Watts  V.   Kellar 220 

Webb   V.    Hughes    196 

Webb,    O'Neill   v.    55 

Webster  v.   French 193 


Webster,    Routh   v.    343 

Weis  V.   Meyer 89 

Welles,  Crabtree  v. 157 

Wells,   Hartman   v.    93 

Wells   V.    wSmith    160 

Wesson  v.  Washburn  Iron  Co.  _  313 

West,    F.dwards    v.    142 

West,  Western  Wagon  Co.  v.  —  61 

Western  Wagon  Co.  v.  West  __  61 

Whatman  v.  Gibson 91 

Whalen  v.   Union   Bag  &   Paper 

Co.    280 

Wheaton  v.   Peters   322 

Whipple  V.   Mclntyre 257 

Whiteside,   Guard  v. 65 

Whitney  v.   Union   Ry.   Co. 117 

Whitten,    Potter   v.    3 

Willey,  Hetfield  v. 200 

Williams,    Warlier   v.    251 

Williamson,    Warfield    Howell 

Co.    V.    4 

Winter.    Thompson   v.    184 

Wood,  Rector  of  St.  David's  v.  _  53 

Wood  V.    Midgley   175 

Woodbury  Glass  Works,  Starr  v.  242 

Woodward,   Shubert   v.    56 

Woohmis  V.   Horsley 153 

World's    Dispensary   Med.   Ass'n 

V.   Pierce 339 

Worster,  Great  Falls  Mfg.  Co.  v.  12 

Wren,  Moss  &  Raley  v. 33 

Y.  &  L.  Coal  Co.,  Hawarden  v.  _  357 

York.   Tomlinson   v.    152 

Young  V.   Overbaugh 170 

Zeppenfeld,  Strohmaier  v. 62 


CASES  ON  EQUITY 

PART  1. 
CHAPTER  I.  INTRODUCTION 


GWATHNEY  v.  STUMP. 

(Supreme  Court   of  Tennessee,   1814,  2  Tenn.    (2   Overton)    308.) 

Overton^  J.  .  .  .  The  great  and  important  principles  of  the 
court  of  chancery,  so  necessary  to  the  preservation  of  law  in  a  free 
country,  were  unknown  in  the  time  of  Coke.  The  exercise  of  its  neces- 
sary powers  met  with  his  decided  and  strenuous  opposition.  And  it 
will  always  be  kept  in  mind  that  the  jurisdiction  of  chancery  was  then 
in  its  infancy.  Its  superiority  to  courts  of  law,  in  adapting  its 
modes  of  redress  in  civil  cases,  to  the  varied  actions  of  men  was  then 
unknown ;  nor  in  fact  had  any  efiforts  been  made  to  ascertain  the 
limits  of  its  jurisdiction,  narrow  as  it  was.  We  have  not  a  vestige 
of  a  decision  in  chancery  previous  to  the  time  of  Charles  II. 

It  was  the  court  of  common  law  that  anciently  did  all  the  business* 
and  it  was  in  advancement  of  the  jurisdiction  and  improvement  of 
those  courts,  that  we  find  the  sturdy  and  capacious  mind  of  Coke 
employed.  Most  of  his  reported  cases,  and  references  to  other  re- 
ports respected  cases  decided  at  law. 

In  his  time,  and  particularly  with  his  disposition,  if  a  man  could 
not  obtain  remedy  at  law,  he  must  generally  go  without  it.  Though 
there  was  not  wanting  a  disposition  to  make  the  modes  of  redress 
at  common  law,  adequate  to  the  exigencies  of  society ;  yet  so  confined 
were  those  courts  in  their  method  of  proceeding,  as  to  be  incapable 
of  administering  substantial  justice  in  many  cases ;  this  generated  a 
disposition  in  the  nation  to  enlarge  the  chancery  powers,  to  administer 
justice  where  the  modes  of  redress  at  law  were  incompetent  to  afford 
it.  As  commerce  extended,  and  civilization  progressed,  the  necessity 
and  convenience  of  the  exercise  of  chancery  powers  increased;  until 

1  The  statement  of  facts  has  usually  been  omitted.  Where  parts  of  the 
opinion  have  been  omitted,  such  omission  has  been  indicated  thus:     .     .     . 

(1) 


2  INTRODUCTION.  (Part  1 

we  see  at  this  day,  a  court  of  equity,  exercising  undisputed  juris- 
diction, not  only  as  an  auxiliary  in  the  cause  of  justice,  agreeably 
to  its  original  character ;  but  exercising  concurrent  jurisdiction  with 
courts  of  law,  in  relation  to  many  of  its  important  branches,  when 
the  modes  of  legal  redress  have  been  found  to  be  embarrassed,  doubt- 
ful, or  inadequate.     .     .     . 

The  principles  which  govern  the  rights  of  men  are  exactly  the 
same  in  courts  of  law,  and  courts  of  equity.  The  history  of  our 
jurisprudence  shows  that  the  latter  has  ever  acted  as  pilots  for  courts 
of  law,  in  the  improvement  of  legal  science.  Sir  John  Mitford  ob- 
serves, that  "the  distinction  between  strict  law  and  equity  is  never  in 
any  country  a  permanent  distinction.  It  varies  according  to  the 
state  of  property,  the  improvement  of  arts,  the  experience  of  judges, 
the  refinement  of  a  people" — and  again,  that  "law  and  equity  are  in 
continual  progression,  and  the  former  is  constantly  gaining  ground 
upon  the  latter.  A  great  part  of  what  is  now  strict  law,  was  formerly 
considered  as  equity ;  and  the  equitable  decisions  of  this  age  will  un- 
avoidably be  ranked  under  the  strict  law  of  the  next."  Mitf.  428,  431. 
In  this  short  outline,  we  see  the  boundaries  between  law  and  equity, 
described  by  the  pen  of  a  master  in  his  profession.  The  precedents 
result  in  this,  that  wherever  a  party  can  obtain  adequate  relief  in  a 
court  of  law,  according  to  its  modes  of  proceeding,  he  shall  not  have 
relief  in  equity.  But  where  the  remedy  is  difficult,  embarrassed,  or 
inadequate,  equity  will  entertain  jurisdiction.  3  Johns,  590.  2  Cains 
251,  Hughes  Rep.  79,  10  Johns.  587. 

But  it  is  of  great  importance,  that  the  jurisdiction  of  courts  of  law 
and  equity,  should  be  kept  as  distinct  as  possible.  Thus,  vSir  John 
Mitford,  afterwards,  when  chancellor  of  Ireland,  observes,  in  the 
case  of  Shannon  and  Bradstreet,  when  speaking  of  the  constitution 
of  courts  of  justice,  "It  is  a  most  important  part  of  that  constitution, 
that  the  jurisdiction  of  the  courts  of  law  and  equity,  should  be  kept 
perfectly  distinct ;  nothing  contributes  more  to  the  due  administration 
of  justice.  And  though  they  act  in  a  great  degree  by  the  same  rules, 
yet  they  act  'in  a  dififerent  manner,  and  their  modes  of  aifording  relief 
are  diiTerent.  And  anybody  who  sees  what  passes  in  the  courts  of 
justice  in  Scotland-  will  not  lament  that  this  distinction  prevails.  But 
Lord  Mansfield  seems  to  have  considered  that  it  manifested  liberality 
of  sentiment,  to  endeavor  to  give  the  courts  of  law  the  powers  which 
are  vested  in  courts  of  equity;  that  it  was  the  duty  of  a  good  judge 


Ch.    1)  IXTRODUCTION.  3 

ampliarc  jiirisdictionem.  This,  I  think,  is  rather  a  narrow  view  of 
the  subject.  It  is  looking  at  particular  cases,  rather  than  at  the  gen- 
eral principles  of  administering  justice,  observing  small  inconveniences, 
and  overlooking  great  ones."    1  Sen.  and  Lefroy  66. 


POTTER  V.  WRITTEN. 

(Missouri  Court  of  Appeals,  1911,  161  Mo.  App.  118,  142  S.  W.  453.) 

NixON^  P.  J.  .  .  .  In  the  case  at  bar.  in  the  original  action  the 
defendant  was  personally  served  with  process  and  personally  appeared 
and  filed  an  answer,  thus  conferring  on  the  court  jurisdiction  over 
his  person.  There  is  no  contention  that  the  circuit  court  of  Jasper 
county  did  not  have  jurisdiction  over  the  class  of  actions  to  which 
this  action  belongs,  and  we  hold  that  said  circuit  court  did  have 
jurisdiction  of  the  subject  matter  of  action,  whether  the  action  be 
considered  as  an  action  at  law,  on  the  promissory  note  as  contended 
by  appellant,  or  as  a  suit  in  equity  for  the  foreclosure  of  the  lien  of 
a  pledge  as  contended  by  respondent. 

Under  our  code  of  procedure  we  have  but  one  form  of  action  for 
the  enforcement  or  protection  of  private  rights  which  is  called  a  civil 
action.  We  submit  all  causes  to  the  judgment  of  one  court ;  and,  in 
order  to  enable  it  to  fulfill  its  functions,  the  law  has  clothed  the 
judge  thereof  not  only  with  the  attributes  of  a  law  judge,  but  also 
with  those  of  a  chancellor  (State  ex  rel.  v.  Evans,  176  Mo.  1.  c.  317, 
75  S..  W.  914).  Both  legal  and  e([uitable  causes  of  action  may  be 
joined  in  the  same  petition  if  connected  with  the  same  transaction. 
(Blair  v.  Railroad,  89  Mo.  383,  1  vS.  W.  350;  Woodsworth  v.  Tanner, 
94  Mo.  124,  7  S.  W.  104. )  The  fact  that  a  statutory  remedy  has  been 
provided  does  not  exclude  the  original  equitable  remedy ;  so  that 
under  the  decisions  of  this  state  ample  play  is  given  to  the  powers 
of  a  court  of  equity,  and  when  it  has  once  accjuired  jurisdiction  for 
one  purpose  the  general  principle  is  enforced  that  it  will  rolain  juris- 
diction for  all  i)urposes  and  do  complete  justice  and  not  put  the 
parties  to  the  trouble  of  an  action  at  law.     . 

The  wisdom  of  the  law  should  no  longi-r  rc(|uirc'  a  litigant  to  be 
driven  from  one  court  t(j  another,  nor  be  comijcllcd  to  have  two 
causes  of  action  and  two  trials  instead  u\  one  wlu-n  tlu-  whole  matter 
can  be  disposed  of  in  one  action.     .     .     . 


4  INTRODUCTION.  (Part  1 

WARFIELD  HOWELL  CO.  v.  WILLIAMSON. 

(Supreme  Court  of  Illinois,  1908,  233  111.  487,  84  N.   E.  706.) 

ViCKijRS^  J.  .  .  .  Plaintiffs  in  error  seek  to  maintain  the  proposi- 
tion that  since  the  relation  of  the  parties,  as  well  as  the  relief  sought,  is 
purely  legal,  equity  has  no  jurisdiction.  Defendant  in  error  seeks 
to  uphold  the  jurisdiction  of  equity,  on  the  ground  that  the  case  falls 
within  the  exclusive  jurisdiction  of  a  coiu't  of  equity.  Neither  of 
these  contentions  is  sound.  In  our  opinion  the  case  belongs  to  that 
class  where  both  the  primary  rights  and  the  relief  sought  are  purely 
legal  and  therefore  cognizable  in  a  court  of  law,  but  of  which  a 
court  of  equity  will  take  jurisdiction  on  the  ground  that,  owing  to  the 
methods  of  procedure  and  the  means  available  to  carry  its  decrees 
into  execution,  its  remedies  are  more  adequate,  complete  and  prompt 
than  those  afforded  by  a  court  of  law.  Defendant  in  error  in  the 
case  at  bar  is  the  holder  of  six  policies  of  insurance  on  which  it  claims 
a  liability  against  plaintiffs  in  error  on  account  of  the  loss  of  its  goods 
by  fire.  There  is  nothing  in  the  character  of  the  rights  or  in  the  ul- 
timate relief  sought  that  distinguishes  this  case  from  any  other  claim 
under  an  insurance  policy  for  loss.  It  would  be  a  very  unusual  state 
of  facts  if  one  holding  a  fire  insurance  policy  could  not  maintain  an 
action  at  law  thereon  to  recover  for  a  loss.  We  see  no  reason  for 
holding  that  the  policies  involved  in  this  suit  might  not  be  sued  on 
in  a  court  of  law.  It  does  not  follow,  however,  that  because  the  case 
is  one  in  which  a  remedy  at  law  is  afforded,  equity  will  not  also  take 
jurisdiction  of  the  same  state  of  facts  to  afford  the  same  redress.  If 
the  remedy  in  equity  is  more  adequate  because  of  some  special  cir- 
cumstance of  the  situation,  the  jurisdiction  of  equity  will  be  sustained. 
In  the  case  at  bar  the  ultimate  relief  sought  is  the  satisfaction  of  a 
legal  demand,  but  this  demand  is  to  be  paid  out  of  a  particular  fund 
created  or  to  be  created  by  contributions  made  by  a  large  number  of 
persons,  which  is  either  in  the  hands  of  the  manager  or  is  to  be  col- 
lected by  him  from  the  subscribers.  It  may  become  necessary,  before 
the  decree  is  satisfied,  to  require  the  manager  to  perform  some  or  all 
of  the  personal  duties  which  he  has  assumed  in  respect  to  the  col- 
lection and  disbursement  of  the  funds  of  the  indemnity  company.  If 
so,  the  procedure  in  courts  of  equity  is  pecuHarly  well  adapted  to 
enforce  the  performance  of   any  personal  act   required  of   plaintiffs 


Ch.    1)  INTRODUCTION.  5 

in  error  in  order  to  obtain  satisfaction  of  the  decree.  One  of  the 
oldest  maxims  of  equity  is  that  it  acts  /';;  [>crsoiia)n — not  i)i  rem.  A 
decree  in  chancery  speaks  in  words  of  command  to  the  defendant, 
but  to  carry  it  into  efifect  some  personal  act  of  the  defendant  is  re- 
quired. For  instance,  equity  determines  that  one  party  is  the  owner  of 
the  equitable  title  to  land  and  decrees  that  a  conveyance  shall  be  made 
by  the  holder  of  the  legal  title  thereof.  Such  a  decree  does  not,  ex 
propria  i-igore,  vest  the  title.  The  personal  act  of  the  defendant,  or 
some  one  for  him,  in  making  the  conveyance  is  necessary  to  carry 
the  decree  into  effect.  (1  Pom.  sec.  428,  et  scq.)  A  court  of  equity 
has  all  the  powers  of  a  law  court  to  enforce  its  decrees  by  an  execution 
against  the  property  of  the  defendant.  In  addition  to  the  usual  proc- 
ess of  execution  against  the  goods,  chattels,  lands  and  tenements  of 
the  defendant,  a  court  of  equity  may,  if  necessary,  attach  the  de- 
fendant and  enforce  a  compliance  with  its  decree  by  fine  or  imprison- 
ment,— one  of  both, — or  may  direct  a  sequestration  for  disobedience 
to  its  decree.  (Hurd's  Stat.  1905,  chap.  22,. sec.  47.)  By  the  flexi- 
bility  of  its  procedure  and  the  score  of  remedies  it  is  authorized  to 
employ  to  secure  satisfaction  of  its  decrees,  courts  of  equity  are  pe- 
culiarly well  equipped  to  furnish  complete  and  adequate  relief  in 
cases  of  this  character.  There  is  a  legal  obligation  at  the  foundation 
of  the  suit,  but  difficulties  may  arise  out  of  the  manner  in  which  the 
obligation  rests  upon  the  persons  or  property  of  plaintiffs  in  error  or 
in  the  efficiency  of  the  process  belonging  to  the  law  court  which  makes 
the  legal  remedy  inadequate.  (Wylie  v.  Coxe,  15  How.  416;  Barber 
V.  Barber,  21  Id.  582.)  In  Weymouth  v.  Boyer,  1  Ves.  Jr.  416,  Mr. 
Justice  Buller  says:  "We  have  the  authority  of  Lord  Hardwicke 
that  if  a  case  was  doubtful  or  the  remedy  at  law  difficult  we  would 
not  pronounce  against  the  equity  jurisdiction.  This  same  principle 
has  been  laid  down  by  Lord  Bathurst."  (See  Society  of  Shakers  v. 
Watson,  68  Fed.  Rep  630.)  We  have  no  doubt  of  the  jurisdiction 
of  a  court  of  equity  under  the  facts  di.sclosed  here.     .     .     . 


CAMPBELL  V.  OILMAN. 

(Supreme  Court   of   Illinois,   1801,   20    111.   210.) 

This  was   an  action  of   assumpsit,   brought    by   the   indorser   of   a 
promissory  note  against  the  makers. 


6  INTRODUCTION.  (Part  1 

Declaration  in  the  usual  form,  with  special  and  common  counts. 

Plea:  That  since  the  commencement  of  the  suit,  in  a  certain  cause 
in  said  court,  in  which  \\^illiam  Engles,  Michael  Engles,  John  Engles, 
and  Joseph  Engles  by  William  Engles,  his  next  friend,  were  com- 
plainants, and  Peter  Engles,  Catherine  Goetell,  Peter  Goetell,  said 
defendants,  Orris  H.  Bullen  and  George  C.  Campbell,  and  also  Joseph 
O.  Glover,  were  defendants,  the  said  Campbell  and  Bullen  were  en- 
joined from  paying  said  note  until  the  further  order  of  said  court, 
and  that  said  order  was  in  full  force  and  efifect. 

Demurrer  to  plea,  general  and  special. 

Bre;esE,  J.  .  .  .  The  demurrer  was  properly  sustained  to  the 
plea  in  this  case.  No  case  can  be  found  in  the  books,  where  a  temporary 
injunction,  like  that  set  out  in  the  plea,  was  ever  held  to  be  a  bar  to  the 
recovery  of  a  judgment  in  an  action  upon  a  note.  It  acts  only  upon 
the  defendant's  name  in  the  writ,  and  would  operate  to  prevent  pay- 
ment, but  not  on  the  action  of  the  court  to  render  a  judgment.  By 
proceeding,  the  plaintiiT  might,  possibly,  subject  himself  to  a  contempt, 
but  the  court  might  proceed  with  the  cause.  If  such  an  injunction 
could  be  pleaded  in  bar,  it  would  amount  to  a  complete  satisfaction  of 
the  debt,  as  much  so  as  actual  payment. 

The  appellants  were  called  upon  to  produce  authority  for  such  a 
plea,  but  none  is  shown.     .     .     . 


EATON  v.  McCALL. 

(Supreme  Court  of  Maine,  1894,  86  Maine,  346,  29  Atl.  1103.) 

Wis  WELL,  J.  Bill  in  equity  between  parties  resident  in  this  State 
to  foreclose  a  mortgage  upon  real  estate  situated  in  Nova  Scotia. 

The  defendant  failing  to  appear,  the  bill  was  taken  pro  confcsso. 
Afterwards  on  motion  for  a  decree,  the  justice  presiding  at  fiisi  prius, 
being  doubtful  as  to  the  jurisdiction  of  this  court,  with  the  consent 
of  counsel  for  the  complainant  reported  the  case  to  the  law  court 
to  determine  whether  the  bill  should  be  sustained,  and  what  decree  if 
any,  should  be  made. 

It  is  a  familiar  maxim  of  equity  jurisprudence,  that  equity  acts 
against  the  person.  \Vhere  the  subject-matter  is  situated  within 
another  State  or  country,  but  the  parties  are  within  the  jurisdiction 
of  the  court,  any  suit  may  be  maintained  and  remedy  granted  which 


Cll.    1)  INTRODUCTION.  .  7 

directly  affects  and  operates  upon  the  person  of  the  defendant  and 
not  upon  the  subject-matter,  although  the  subject-matter  is  referred  to 
in  the  decree,  and  the  defendant  is  ordered  to  do  or  refrain  from  cer- 
tain acts  toward  it,  and  it  is  thus  ultimately  but  indirectly,  affected  by 
the  relief  granted.     Pomeroy's  Equity  Jurisprudence,   §   1318. 

Common  instances  of  such  an  exercise  of  equity  powers,  are  where 
courts,  having  jurisdiction  of  the  person,  decree  the  specific  perform- 
ance of  contracts  to  convey  lands,  enforce  and  regulate  trusts,  or 
relief  from  fraud,  actual  or  constructive,  although  the  subject  matter 
of  the  contract,  trust  or  fraud,  either  real  or  personal  property  be 
situated  in  another  State  or  country.  A  leading  case  upon  this  sub- 
ject and  one  often  cited  in  modern  cases,  is  that  of  Penn  v.  Lord 
Baltimore,  1  \'cs.  444,  decided  in  1750  by  Lord  Chancellor  Hard- 
wicke. 

The  fact  of  the  situs  of  the  land  being  without  the  commonwealth 
does  not  exempt  defendant  from  jurisdiction,  the  subject  of  the  suit, 
being  the  contract,  and  a  court  of  equity  dealing  with  persons,  and 
compelling  them  to  execute  its  decrees  and  transfer  property  within 
their  control,  whatever  may  be  the  situs.  Pingree  v.  Coffin,  12  Gray, 
288. 

The  principle  is  thus  stated  by  the  Federal  Supreme  Court :  "Where 
the  necessary  parties  are  before  a  court  of  equity,  it  is  immaterial  that 
the  res  of  the  controversy,  whether  it  be  real  or  personal  property, 
is  beyond  the  territorial  jurisdiction  of  the  tribunal.  It  has  the  power 
to  compel  the  defendant  to  do  all  things  necessary,  according  to  the 
lex  loci  rei  sitae,  which  he  could  do  voluntarily  to  give  full  effect  to  the 
decree  against  him.  Without  regard  to  the  situation  of  the  subject- 
matter,  such  courts  do  consider  the  equities  between  the  parties  and 
decree  in  personam  according  to  those  equities,  and  enforce  obedience 
to  their  decrees  by  a  process  /;;  personam."    Phelps  v.  McDonald,  99 

U.  S.  298. 

Our  court  in  Reed  v.  Reed.  75  Maine.  264,  sustained  a  bill  and  made 
the  necessary  decrees  to  redeem  from  a  mortgage  lands  situated  in 
the  state  of  Wisconsin.  And  the  court  has  in  many  cases  proceeded 
and  granted  relief  upon  the  maxim,  equitas  agit  in  personam. 

'J'he  English  chancery  courts,  regarding  the  right  to  redeem  as 
a  mere  personal  right,  and  the  decree  for  a  foreclosure,  a  decree  in 
personam,  have  often  decreed  the  foreclosure  of  mortgages  upon  lands 
beyond  the  jurisdiction  of  the  court.  Toller  v.  Carteret,  2  Vern.  495; 
Paget  v.Ede,  L.  R.  18  Eq.  118. 


S  .  INTRODUCTION.  (Part  1 

In  this  country  the  question  has  frequently  arisen  as  to  the  power 
of  an  equity  court  to  decree  the  foreclosure  of  a  mortgage  upon 
property  Situated  both  within  and  without  the  jurisdiction  of  the 
court.  The  doctrine  is  sustained  by  the  highest  authorities  that  a 
court  having  jurisdiction  of  the  person  of  the  mortgagor,  or  of  the 
owner  of  the  right  to  redeem,  may  decree  such  a  foreclosure. 

In  Muller  v.  Dows,  4  Otto,  444,  it  was  held  that  a  U.  S.  Circuit 
Court  for  the  District  of  Iowa,  which  had  jurisdiction  of  the  mortgagor 
and  the  trustees  of  the  mortgage,  could  make  a  decree  foreclosing 
a  mortgage  upon  a  railroad  and  its  franchises  and  order  a  sale  of 
the  entire  property  although  a  portion  of  the  property  was  in  the 
State  of  Missouri.  Mr.  Justice  Strong  in  delivering  the  opinion  of 
the  court  said,  "Without  reference  to  the  English  Chancery  decisions, 
where  this  objection  to  the  decree  would  be  quite  untenable,  we  think 
the  power  of  courts  of  chancery  in  this  country  is  sufficient  to  authorize 
such  a  decree  as  was  here  made.  It  is  here  undoubtedly  a  recognized 
doctrine  that  a  court  of  equity  sitting  in  a  State  and  having  juris- 
diction of  the  person  may  decree  a  conveyance  by  him  of  land  in 
another  State,  and  it  may  enforce  the  decree  by  a  process  against  the 
defendant. 

In  Union  Trust  Co.  v.  Olmstead,  102  N.  Y.  729,  the  plaintiif  sought 
by  foreclosure  and  sale  to  enforce  a  mortgage  executed  by  the  de- 
fendant corporation  upon  property,  a  part  of  which  was  situated  in 
another  State.  The  court  held  that  although  the  decree  of  foreclosure 
might  not  be  operative  beyond  the  territorial  limits  of  the  jurisdiction, 
that  the  court  might  have  required  the  mortgagor,  being  within  the 
jurisdiction,  to  execute  a  conveyance  of  the  property  situated  in  the 
other  State. 

To  the  same  eiTect  are  numerous  other  decisions  by  courts  of  the 
highest  authority  in  this  country,  both  Federal  and  State.  After 
an  examination  of  these  authorities  we  have  no  doubt  that  this  court 
has  the  power  to  make  a  decree  compelling  a  mortgagor,  over  whom  it 
has  jurisdiction,  to  make  a  conveyance  of  the  mortgaged  premises, 
after  failure  to  pay  the  amount  ascertained  to  be  due,  within  the  time 
fixed  by  a  decree  of  the  court,  which  time  should  not  be  less  than  the 
statutory  period  allowed  for  redemption  in  the  place  where  the  land 
is  situated. 


Ch.    1)  IXTRODT'CTIOX.  9 

But  as  to  when  and  under  what  circumstances  this  power  should 
be  exercised  by  the  court,  is,  we  think,  another  and  quite  different 
question.  It  must  be  remembered  that  no  decree  of  the  court  would  be 
operative  except  one  against  the  mortgagor,  or  person  having  the 
right  to  redeem,  commanding  a  conveyance.  The  court  could  not 
proceed  in  the  usual  and  customary  method  by  decreeing  either  a  strict 
foreclosure  or  a  foreclosure  by  a  judicial  sale.  Neither  the  decree  it- 
self nor  any  conveyance  under  it,  except  by  the  person  in  whom  the 
title  is  vested,  can  operate  beyond  the  jurisdiction  of  the  court.  Wat- 
kins  V.  Holman,  16  Pet.  25.  A  court  cannot  send  its  process  into  an- 
other State  nor  can  it  deliver  possession  of  land  in  another  jurisdiction. 
Midler  v.  Dozvs,  supra.  It  can  only  accomplish  foreclosure  of  such  a 
mortgage  by  its  decree  in  personam,  compelling  a  conveyance. 

We  do  not  think  that  a  chancery  court  should  exercise  this  power 
except  under  unusual  or  extraordinary  circumstances.  Wherever  it 
is  necessary  in  order  to  prevent  loss  or  to  protect  the  rights  of 
a  mortgagee  it  may  be  done,  for  instance  in  the'  case  of  a  mortgage 
upon  property  situated  both  within  and  without  the  State,  where-  un- 
less a  sale  of  the  entire  property  could  be  made  at  one  time,  great  loss 
might  ensue,  or  in  other  cases  where  an  equally  good  reason  existed. 
But  ordinarily  we  think  that  the  holder  of  a  mortgage  should  be  re- 
quired to  resort  to  the  remedies  or  the  courts  of  the  jurisdiction  in 
which  the  land  is  situated.  This  is  in  accordance  with  the  principle, 
than  which  none  is  better  established  that  the  disposition  of  real  estate, 
whether  by  deed,  descent,  or  by  any  other  mode,  must  be  governed 
by  the  law  of  the  state  where  the  same  is  situated.  Watki)is  v.  Hol- 
man, supra. 

In  this  case  there  are  no  reasons,  either  alleged  or  apparent  why  the 
holder  of  the  mortgage  cannot  foreclose  the  same  according  to  the 
law  of  the  place  where  the  land  is  situated,  without  loss  or  great  in- 
convenience. 

We  think  therefore  that  the  entry  should  be, 

Bill  dismissed  without  prejudice. 


CLOYD  V.  TROTTER. 

(Supreme  Court  of  Illinois,  1887,  118  111.  liUl.) 

ScoTT,  C.  J.     The  bill  in  this  case  was  brought  in  the  circuit  court 
of  Wayne  county,  by  William  Trotter,  against  James  C  Cloyd,  and 


10  INTRODUCTION.  (Part  1 

was  to  remove  a  cloud  from  the  title  to  property  which  complainant 
claimed  to  own.    A  decree  was  rendered  in  accordance  with  the  prayer 
of  the  bill,  and  as  the  title  to  the  property  is  involved,  defendant  brings 
the  case  directly  to  this  court  on  error,  as  he  is  authorized  by  law  to  do. 
No  question  is  raised  on  the  bill,  and  the  assignment  of  errors  does 
not  make  any  discussion  of  the  merits  of  the  case  necessary.     De- 
fendant is  a  non-resident  of  the  State  of  Illinois,  and  the  service  upon 
him  was  by  a  service  of  a  copy  of  the  bill  upon  him,  at  his  residence  in 
the  city  of  New  York.     It  is  objected,  the  service  was  insufficient,  and 
as  there  was  no  appearance  by  defendant,  or  by  any  solicitor  for  him, 
the  court  had  no  jurisdiction  to  render  the  decree  it  did.     Section  14 
of  the  Chancery  Act    (Rev.  Stat.  1874,  p.  200)  provides:     "The  com- 
plainant may  cause  a  copy  of  the  bill,  together  with  a  notice  of  the 
commencement  of  the  suit,  to  be  delivered  to  any  defendant  residing 
or  being  without  this  State,  not  less  than  thirty  days  previous  to  the 
commencement  of  the  term  at  which  such  defendant  is  required  to 
appear,  which  service,  when  proved  to  the  satisfaction  of  the  court, 
shall  be  as  effectual  as  if  such  service  had  been  made  in  the  usual  form 
within  the  limits  of  this  State." 

The  point  is  made  against  the  sufficiency  of  the  service  in  this  case, 
that  the  notice  of  the  commencement  of  the  suit  was  not  signed,  either 
by  complainant,  or  any  solicitor  for  him.  The  Statute  does  not,  in 
terms,  require  the  notice  to  be  served  shall  be  signed  either  by  com- 
plainant or  his  solicitor,  but  the  better  practice,  no  doubt,  is,  that  it 
should  be  signed.  In  this  case  the  notice  was  attached  to  the  bill,  and 
may  be  treated  as  a  part  of  it,  and  as  the  bill  was  signed  by  the  solicitor 
of  complainant,  that  is  thought  to  be  sufficient,  and  especially  when 
considered  in  connection  with  the  affidavit  of  the  party  making  the 
service,  wherein  it  is  alleged  he  "served  a  copy  of  the  within  bill  and 
notice  of  the  commencement  of  the  suit,  upon"  defendant.  In  this 
respect  the  notice  is  sufficient. 

It  is  further  objected,  no  summons  was  issued  for  defendant,  and 
no  effort  made  to  obtain  personal  service  upon  him.  Here,  again, 
the  statute  is  silent.  It  is  not  provided  summons  shall  be  issued  and 
returned  not  found,  before  a  defendant  residing  or  being  without  the 
limits  of  this  State  may  be  served  with  a  copy  of  the  bill  filed  against 
him,  and  of  a  notice  of  the  commencement  of  the  suit.  But  if  the 
statute  did  require  the  issuing  and  return  of  a  summons,  it  is  thought 
this  record  does  show  a  summons  was  issued,  and  returned  not  found, 


Cll.    1)  IXTKODUCTIOX.  ll 

as  to  defendant,  before  the  copy  of  the  bill  was  served  upon  him.  The 
question  of  jurisdiction  is  always  a  preliminary  one,  and  the  court,  in 
this  case,  found,  by  its  decree,  it  appeared  "to  the  court  a  summons 
had  been  issued  against  defendant  and  returned  not  found."  There 
is  nothing  in  the  record  itself  that  contradicts  this  finding  of  the  court, 
and  it  must  therefore  be  regarded  as  having  been  correctly  found.  No 
summons  is  found  in  the  record  for  defendant.  The  clerk  recited  that 
the  only  summons  found  among  the  papers  of  the  case,  is  one  for  J.  B. 
Cornell,  at  the  suit  of  William  Trotter.  Cornell  is  not  a  party  to  this 
suit  in  any  way.  There  is  nothing  whatever  to  show  the  summons 
transcribed  into  the  record  was  issued  in  this  case,  or  that  it  was  before 
the  court  when  it  found,  as  it  did.  that  "a  summons  had  been  issued 
against  defendant,  and  returned  not  found."  It  may  be  that  a  sum- 
mons for  defendant  was  issued,  and  lost  from  the  files.  How  that  may 
be,  of  course  does  not  appear,  but  it  is  certain  there  is  nothing  to  show 
the  court  found  incorrectly  on  this  jurisdictional  question. 

The  third  error  of  the  series,  viz.,  the  court  erred  in  entering  a 
personal  judgment  against  defendant  for  costs,  and  in  awarding  ex- 
ecution against  him  for  the  collection  of  the  same,  seems  to  be  well 
assigned.  There  was  no  appearance  in  the  court  below,  either  by 
defendant,  or  any  solicitor  for  him,  and  it  is  not  perceived  how  that 
court  obtained  jurisdiction  of  his  person  so  as  to  render  a  personal 
decree  against  him,  for  costs  or  otherwise,  and  to  award  execution 
against  him,  as  for  the  collection  of  a  personal  money  decree.  So  far 
as  the  property  situated  within  the  jurisdiction  of  the  court  is  involved, 
the  court  had  jurisdiction  to  decree  concerning  it,  and  defendant,  and 
all  parties  claiming  through  or  under  him.  would  be  bound.  But  that 
fact  gave  no  jurisdiction  to  the  court  to  render  a  personal  money  de- 
cree against  him,  as  the  coiu't  might  do  if  defendant  had  been  within 
its  jurisdiction.  It  affirmatively  appears  in  this  case,  defendant  re- 
sided in  another  vState.  Treating  the  service  by  copy  of  the  ])ill,  and 
notice  of  the  commencement  of  the  suit,  as  effectual  "as  if  such  serv- 
ice had  been  made  in  the  usual  form  within  the  limits  of  this  State," 
as  the  Statute  provides  shall  be  done,  still  such  service  does  not  confer 
jurisdiction  c>n  tlie  coiu't.  of  the  person  of  defendant,  so  as  to  enable  it 
to  render  a  personal  money  decree  against  him,  to  be  collected  by 
execution.  No  one  will  insist  the  court  could  send  its  process  out  of 
the  State,  and  by  proof  of  service  within  ;i  foreign  State  acciuire  juri.-.- 


12  INTRODUCTION.  (Part  1 

diction  over  the  person  of  defendant,  so  as  to  render  a  personal  money 
decree  against  him.  It  is  so  obvious  it  need  not  be  stated,  that  persons 
residing  or  being  without  the  Hmits  of  this  State  can  not  be  subjected 
to  the  jurisdiction  of  the  local  courts  by  the  service  of  process  or 
other  service  upon  them  at  the  place  of  their  domicile. 

The  decree  of  the  circuit  court,  so  far  as  it  adjudged  costs  against 
defendant,  and  awarded  execution  for  the  collection  of  the  same,  will 
be  reversed  in  this  court,  but  in  all  other  respects  it  will  be  affirmed; 
and  as  he  ought,  on  account  of  the  wrongful  conduct  alleged  against 
him  in  the  bill,  to  pay  such  costs,  plaintiff  in  error  will  be  required  to 
pay  all  costs  in  this  case  in  this  court. 

Decree  reversed  in  part  and  in  part  affirmed. 


GREAT  FALLS  MANUFACTURING  COMPANY  v.  WORSTER. 

(Supreme  Court  of  New  Hampshire,  1851,  23  N.  H.  462.) 

In  Equity.  The  following  case  was  stated  in  the  bill : 
The  orators  are  a  corporation  established  at  Great  Falls,  on  Salmon 
river,  in  Somersworth,  and  own  five  cotton  mills  there,  with  suitable 
machinery,  and  to  enable  them  to  use  the  mills,  they  need  the  water 
of  Salmon  river.  For  this  purpose,  they  have  kept  up  a  dam  for  some 
years  past,  across  the  river,  at  the  outlet  of  the  Three  Ponds,  so  called, 
partly  in  Milton,  in  this  county,  and  partly  in  Lebanon  in  the  State  of 
Maine,  and  have  thereby  accumulated  the  water  in  rainy  seasons,  and 
have  used  it  in  seasons  of  drought.  The  respondent,  who  is  a  citizen 
of  New  Hampshire,  claims  an  interest  in  certain  tracts  of  land,  some 
of  which  are  in  Milton,  and  some  are  in  Lebanon,  and  which  are  flowed 
by  the  water  of  the  pond  created  by  the  dam,  his  rights  to  which  lands 
are  denied  by  the  orators.  The  respondent  has  recently  destroyed  a 
part  of  the  dam,  and  threatens  to  remove  the  whole  of  it,  so  that  it 
shall  be  no  higher  than,  as  he  alleges,  it  ought  to  be,  and  so  that  it  shall 
not  cause  the  water  to  flow  the  lands  in  which  he  professes  to  have 
an  interest.  The  bill  prays,  that  he  may  be  enjoined  from  destroying 
any  part  of  the  abutment,  dam.  or  superstructure,  and  from  inter- 
meddling with  it  in  any  way. 

The  bill  contained  other  allegations,  which  are  at  present  immaterial, 
the  only  question  now  raised,  being,  whether  the  court  had  jurisdiction 


Ch.    1)  INTRODUCTION.  13 

to  restrain  a  citizen  of  this  State,  from  going  into  another  State,  and 
committing  acts  injurious  to  the  property  of  the  orators  situated 
here.     .     .     . 

Gilchrist,  C.  J.  The  apphcation  now  before  us  is  made  by  vir- 
tue of  the  provision  contained  in  No.  7.  ch.  171,  Rev.  Stat.,  which 
authorizes  the  court  to  "grant  writs  of  injunction  whenever  the  same 
shall  be  necessary  to  prevent  injustice."  Questions  analogous  to  that 
now  presented  have  often  been  investigated,  both  in  England  and  in 
this  country,  and  the  principles  recognized  by  the  decisions,  go  far 
enough  to  authorize  the  court  to  grant  the  relief  now  prayed  for.  The 
court  are  not  asked  to  assume  any  jurisdiction,  or  exercise  any  con- 
trol over  the  land  in  Maine,  or  to  interfere  with  the  laws  of  that  State. 
Nothing  more  is  asked  than  that  the  respondent,  a  citizen  of  New 
Hampshire,  and  residing  within  her  limits,  shall  be  subject  to  her 
laws,  and  that,  being  within  reach  of  the  process  of  this  court,  he 
shall  be  forbidden  to  go  elsewhere  and  commit  an  injury  to  the  prop- 
erty of  other  citizens,  situated  here,  and  entitled  to  the  protection  of 
our  laws. 

In  the  case  of  Penn  v.  Lord  Baltimore,  1  Ves.,  444,  Lord  Hardwicke 
recognized  and  acted  upon  the  principle  that  equity,  as  it  acts  primarily 
in  personam,  and  not  merely  in  rem,  may  make  a  decree,  where  the 
person  against  whom  relief  is  sought,  is  within  the  jurisdiction  upon 
the  ground  of  a  contract,  or  any  equity  subsisting  between  the  parties 
respecting  property  situated  out  of  the  jurisdiction.  A  decree  was 
made  for  the  specific  performance  of  a  contract  relating  to  the  boun- 
dary between  the  colonies  of  Pennsylvania,  and  Maryland.  In  the 
course  of  his  judgment,  Lord  Hardwicke  says :  "this  court,  therefore, 
has  no  original  jurisdiction  on  the  direct  question  of  the  original  right 
of  the  boundaries,  and  their  bill  does  not  stand  in  need  of  that.  It 
is  founded  on  articles  executed  in  England,  under  seal,  for  mutual 
considerations,  which  gives  jurisdiction  to  the  king's  courts,  both  in 
law  and  in  equity,  whatever  be  the  subject-matter."  lie  subsequently 
says :  "the  conscience  of  the  party  was  bound  by  this  agreement, 
and  being  within  the  jurisdiction  of  this  court,  which  acts  in  personam, 
the  court  may  properly  decree  it  as  an  agreement." 

This  case  decided,  that  although  the  subject-matter  of  a  contract 
be  land  out  of  the  jurisdiction,  the  boundary  of  the  land  may  be  settled 
by  a  degree  for  a  specific  performance  of  the  contract.  In  this  way 
a  party  within  the  jurisdiction  may  be  compelled- to  do  an  act  of  justice, 


14  INTRODUCTION.  (Part  1 

in  relation  to  land  out  of  the  jurisdiction.  The  case  is  a  leading  one, 
and  its  principle  has  been  extensively  followed.  This  doctrine,  how- 
ever, was  not  first  suggested  by  Lord  Hardwicke.  Before  his  time, 
it  was  well  established  in  the  court  of  chancery,  although  it  had  not 
received  so  elaborate  an  exposition  in  any  preceding  case,  as  in  the 
decision  referred  to.  In  the  case  of  Arglasse  v.  Muschamp,  1  Vernon, 
75,  the  bill  prayed  for  relief  against  an  annuity  charged  upon  the 
orator's  lands  in  Ireland,  on  the  ground  of  fraud.  The  respondent 
pleaded  to  the  jurisdiction  of  the  court,  that,  the  lands  lying  in  Ire- 
land, the  matter  was  properly  examinable  there,  and  that  the  court 
ought  not  to  interpose.  The  Lord  Chancellor  said :  "this  is  surely  a 
jest  put  upon  the  jurisdiction  of  this  court,  by  the  common  lawyers; 
for  when  you  go  about  to  bind  the  lands,  and  grant  a  sequestration,  to 
execute  a  decree,  then  they  readily  tell  you,  that  the  authority  of  this 
court  is  only  to  regulate  a  man's  conscience,  and  ought  not  to  afifect 
the  estate,  but  that  this  court  must  agerc  in  personam,  only;  and  when, 
as  in  this  case  you  prosecute  the  person  for  a  fraud,  they  tell  you, 
you  must  not  intermeddle  here,  because  the  fraud,  though  committed 
here,  concerns  lands  that  lie  in  Ireland,  which  makes  the  jurisdiction 
local;  and  so  would  wholly  elude  the  jurisdiction  of  this  court."  The 
plea  was  overruled.  In  the  case  of  Toller  v.  Carteret,  2  Vernon,  494, 
the  bill  was  to  foreclose  a  mortgage  upon  the  island  of  Sarke,  and  the 
respondent  pleaded  to  the  jurisdiction  of  the  court,  that  the  island  of 
Sarke  was  part  of  the  Duchy  of  Normandy,  and  had  laws  of  its  own, 
and  was  under  the  jurisdiction  of  the  courts  of  Guernsey,  and  not  with- 
in the  jurisdiction  of  the  court  of  chancery.  But  it  was  held,  "that  the 
court  of  chancery  had  also  a  jurisdiction,  the  defendant  being  served 
with  the  process  here,  ct  acqiiitas  agit  in  personam,  which,  is  another 
answer  to  the  objection."  In  Lord  Cranstown  v.  Johnson,  3  Ves.,  170, 
the  master  of  the  rolls,  after  commenting  on  some  of  the  cases,  says : 
"these  cases  clearly  show,  that  with  regard  to  any  contract  made,  or 
equity  between  persons  in  this  country,  respecting  lands  in  a  foreign 
country  particularly  in  the  British  dominions,  this  court  will 
hold  the  same  jurisdiction,  as  if  they  were  situated  in  England." 
In  Portarlington  v.  Soulby,  3M  &  R.  104,  the  bill  was  to  restrain  the 
respondents  from  suing  in  Ireland,  upon  a  bill  of  exchange 
given  for  a  gambling  debt.  Upon  a  motion  to  dissolve  the  injunction 
Lord  Brougham  said:  "In  truth  nothing  can  be  more  unfounded, 
than    the    doubts    of  the    jurisdiction.     That  is  grounded,    like    all 


Ch.    1)  INTRODUCTION.  15 

Other  jurisdiction  of  the  court,  not  upon  any  pretension  to  the  ex- 
ercise of  judicial  and  administrative  rights  abroad,  but  on  the 
circumstance  of  the  person  of  the  party  on  whom  this  order  is  made, 
being  within  the  power  of  the  court.  If  the  court  can  command  him 
to  bring  home  goods  from  abroad,  or  to  assign  chattel  interests,  or  to 
convey  real  property  locally  situate  abroad;  if  for  instance  as  in  Penn 
V.  Lord  Baltimore,  it  can  decree  the  performance  of  an  agreement 
touching  the  boundary  of  a  province  in  North  America ;  or  as  in  the 
case  of  Toller  v.  Carteret,  can  foreclose  a  mortgage,  in  the  isle  of 
Sarke,  one  of  the  channel  islands,  in  precisely  the  like  manner  can  it 
restrain  the  party,  being  within  the  limits  of  its  jurisdiction,  from 
doing  anything  abroad,  whether  the  thing  forbidden  be  a  conveyance, 
or  other  act  in  pais,  of  the  instituting  or  prosecution  of  an  action  in 
a  foreign  court." 

The  principle  that  a  court  in  chancery  will  exercise  such  a  power  as 
the  orators  ask  should  now  be  enforced,  whenever  the  case  is  one  of 
equitable  cognizance,  and  the  parties  are  within  the  jurisdiction,  al- 
though the  property  may  be  beyond  it,  is  as  fully  recognized  by  the 
courts  in  this  country,  as  in  England.  In  Massie  v.  Watts,  6  Cranch, 
148.  the  question  was  whether  the  defendant,  being  within  the  juris- 
diction of  the  circuit  court  in  Kentvicky,  could  be  decreed  to  convey 
lands  in  Ohio,  and  the  defence  was  that  the  land  lay  beyond  the  juris- 
diction of  the  court.  Marshall,  C.  J.,  said,  "where  the  defendant  i? 
liable,  either  in  consequence  of  contract,  or  as  trustee,  or  as  the 
holder  of  a  legal  title  acquired  by  any  species  of  mala  fides  practiced 
upon  the  plaintiff,  the  principles  of  equity  give  a  court  jurisdiction, 
wherever  the  person  may  be  found,  and  the  circumstance  that  a  ques- 
tion of  title  may  be  involved  in  the  inquiry,  and  may  even  constitute 
the  essential  point  on  which  the  case  depends,  does  not  seem  sufficient 
to  arrest  that  jurisdiction. 

In  the  case  of  Sutphen  v.  Fowler,  9  Paige,  the  bill  was  filed  for 
the  specific  performance  of  a  contract  for  the  sale  of  lands  in  Michi- 
gan, against  the  infant  child  of  the  contracting  party,  who  at  the  time 
of  his  death  was  entitled  to  a  conveyance  of  the  legal  title  to  the  prem- 
ises, which  was  subsequently  made  to  the  defendant.  It  was  held, 
that  the  court  had  jurisdiction  to  decree  the  specific  performance  of  a 
contract  for  the  sale  of  lands  in  another  State,  where  the  person  of 
the  defendant  was  within  reach  of  its  process,  and  might  direct  a 
conveyance  by  the  infant  when  she  should  arrive  at  the  proper  age 


16  INTEODUCTION.  (Part  1 

to  enable  her  to  transfer  the  legal  title  according  to  the  laws  of  Michi- 
gan and  might  authorize  the  orator  to  take  and  to  retain  possession  of 
the  premises  until  that  time,  if  he  could  obtain  possession  of  them 
without  suit.  It  was  also  held,  and  that  is  very  pertinent  to  the  present 
inquiry,  that  in  the  meantnne,  the  court  might  grant  a  perpetual  in- 
junction, restraining  the  defendant  from  disturbing  the  complainant 
in  such  possession,  or  from  doing  any  act  whereby  the  title  should  be 
transferred  to  any  other  person,  or  in  any  way  impaired  or  incumbered. 

This  decision  is  in  point  not  only  as  regards  the  principle,  but  also 
in  relation  to  its  application  to  a  state  of  facts  similar  to  those  in  the 
case  now  before  us.  Nothing  more  is  asked  by  the  orators  here, 
than  that  the  defendant  should  be  restrained  from  injuring  or  inter- 
fering with  the  property  of  the  orators  situated  in  Maine,  and  the 
above  case  of  Sutphen  v.  Fowler  is  an  express  adjudication  that  he 
may  be  so  enjoined.  The  principle  is  also  recognized  and  stated,  by  the 
most  eminent  elementary  writers.  Jeremy's  Eq.  Jur.,  557;  Story's 
Eq.  Jur.,  743,  744,  899,  900. 

It  would  be  a  great  defect  in  the  administration  of  the  law,  if  the 
mere  fact,  that  the  property  was  out  of  the  State  could  deprive  the 
court  of  the  power  to  act.  As  much  injustice  may  be  perpetrated  in 
a  given  case,  against  the  citizens  of  this  State,  by  going  out  of  the 
jurisdiction  and  committing  a  wrong,  as  by  staying  here  and  doing  it. 
The  injustice  does  not  lose  its  quality  by  being  committed  elsewhere 
than  in  New  Hampshire,  and  as  the  legislature  has  conferred  upon 
the  court  the  power  to  issue  injunctions  whenever  it  is  necessary  to 
prevent  injustice,  it  is  the  duty  of  the  court  to  exercise  that  power 
upon  the  presentation,  of  a  proper  case,  and  when  it  can  be  done 
consistently  with  the  acknowledged  practice  in  courts  of  equity.  As 
the  principle  which  is  sought  to  be  applied  here,  has  been  recognized 
for  nearly  two  hundred  years,  we  have  no  hesitation  in  holding,  that 
the  court  has  jurisdiction  to  issue  the  injunction  prayed  for. 


ROYAL  LEAGUE  v.  KAVANAGH. 

(Supreme  Court  of  Illinois,   1908,  233  111.  175,  84  N.  E.   178.) 

Dunn,  J.  The  appellant  filed  its  bill  in  the  circuit  court  of  Cook 
county  for  an  injunction  to  restrain  the  appellee  from  bringing  an 
action  in  the  State  of  Missouri  against  the  appellant  upon  a  benefit 


Ch.    1)  INTRODUCTION.  17 

certificate  issued  by  it  to  Thomas  W.  Kavanagh,  in  which  the  appellee 
was  named  as  beneficiary.  The  circuit  court  sustained  a  demurrer 
to  the  bill,  which  was  thereupon  dismissed  for  want  of  equity,  and 
that  decree  having  been  affirmed  by  the  Appellate  Court,  this  further 
appeal  is  prosecuted  by  the  appellant.     .     .     . 

The  bill  further  alleged  that  the  appellee,  in  order  to  evade  the 
law  of  Illinois  by  which  her  rights  should  be  determined  and  in  order 
to  avail  herself  of  the  law  of  Missouri,  now  threatens  to  bring  legal 
proceedings  in  Missouri  on  the  benefit  certificate  to  compel  the  ap- 
pellant to  pay  the  sum  of  $4,000  whereas  in  truth  and  in  fact  it  is 
liable  for  no  more  than  $322.84,  which  action  and  conduct  on  the  part 
of  the  appellee,  unless  restrained,  will  be  a  fraud  upon  the  appellant 
and  will  result  in  depriving  it  of  its  rights  under  the  laws  of  this 
State.     .     .     . 

There  is  no  question  as  to  the  right  to  restrain  a  person  over  whom 
the  court  has  jurisdiction   from  bringing  a  suit   in  a   foreign   State. 
(Harris  v.  Pullman,  84  111.  20).     The  courts  do  not,  in  such  cases, 
pretend  to  direct  or  control  the   foreign  court,   but  the   decree  acts 
solely  upon  the  party.    The  jurisdiction  rests  upon  the  authority  vested 
in  courts  of  equity  over  persons,  within  the  limits  of  their  jurisdiction 
and  amenable  to  process,  to  stay  acts  contrary  to  equity  and  good 
conscience.     The  State  has  power  to  compel  its  own  citizens  to  re- 
spect its  laws  even  beyond  its  own  territorial  limits,  and  the  power  of 
the  courts  is  undoubted  to  restrain  one  citizen  from  prosecuting  in  the 
courts  of  a  foreign  State  an  action  against  another  which  will  result  in 
a  fraud  or  gross  wrong  or  oppression.     (Snook  v.  Snetzer,  25  Ohio  St. 
516;  Keyser  v.  Rice,  47  Md.  203;  Teager  v.  Landsley,  69  Iowa,  725; 
Wilson  V.  Joseph,  107  Ind.  490;  Dehon  v.  Foster,  4  Allen,  545).     But 
the  court   will  not   restrain  the  prosecution   of   a   suit   in   a    foreign 
jurisdiction   unless   a   clear   equity   is   presented    requiring  the   inter- 
position of  the  court  to  prevent  a  manifest  wrong  and  injustice.     It 
is  not  enough  that  there  may  be  reason  to  anticipate  a  difference  of 
opinion  between  the  two  courts,  and  that  the  courts  of  the  foreign  State 
would  arrive  at  a  judgment  different  from  the  decisions  of  the  courts 
in  the  State  of  the  residence  of  the  parties,     (Carson  v.  Durham  149 
Mass.  52).     It  is  not  inequitable  for  a  party  to  prosecute  a  legal  de- 
mand against  another  in  any  forum  that  will  take  legal  jurisdiction 
of  the  case,  merely  because  that  forum  will  afford  him  a  better  remedy 
1  Eq.— 2 


18  INTRODUCTION.  (Part  1 

than  that  of  his  domicile.  To  justify  equitable  interposition  it  must 
be  made  to  appear  that  an  equitable  right  will  otherwise  be  denied 
the  party  seeking  relief.     Thorndike  v.  Thorndike,  142  111.  450. 

A  person  has  the  right  to  select  such  tribunal  having  jurisdiction 
as  he  chooses  for  the  prosecution  of  his  rights,  and  the  court  which 
first  obtains  jurisdiction  will  retain  it.  Such  jurisdiction  cannot  be 
defeated  because  the  defendant  may  prefer  another  tribunal  in  which 
he  supposes  the  decision  will  be  more  favorable  to  him.  In  this  case 
it  is  not  averred  that  the  vSvipreme  Court  of  Missouri  has  laid  down 
any  rule  of  law  different  from  that  of  this  court.  The  averment  is, 
that  in  two  cases  mentioned  the  Court  of  Appeals  of  Missouri  has 
settled  the  rule  of  law  in  that  State  in  accordance  with  the  statement 
thereof  in  the  bill.  It  is  not  averred  that  the  Court  of  Appeals  of 
Missouri  is  the  court  of  final  appellate  jurisdiction  in  the  State,  or  that 
the  court  of  final  appellate  jurisdiction  has  made  any  decision  of  any 
question  involved  in  this  case.  While  the  law  of  another  State  is 
matter  of  fact  of  which  we  cannot  take  judicial  notice,  yet  the  allega- 
tions of  the  bill  in  that  regard  are  entirely  consistent  with  the  hypothesis 
that  the  Court  of  Appeals,  whose  decisions  are  alleged  to  have  estab- 
lished the  law  of  Missouri,  may  be  an  inferior  court  of  that  State  of  lim- 
ited territorial  jurisdiction,  whose  decisions  are  subject  to  review  by  the 
Supreme  Court.  This  court  cannot,  in  advance  of  its  announcement 
by  the  Supreme  Court  of  Missouri,  assume  that  the  common  law  in 
that  State  will  be  declared  to  be  diiTerent  from  the  common  law  as 
construed  in  this  State.  Allegation  and  proof  that  a  court  of  a  State 
not  having  final  appellate  jurisdiction  has  settled  a  particular  rule  of 
law  does  not  constitute  allegation  or  proof  that  such  rule  is  the  law 
of  the  State.  So  far  as  appears,  if  the  appellee  should  bring  an  action 
in  the  State  of  Missouri  against  appellant  on  this  benefit  certificate, 
and  if  the  nisi  prius  and  Appellate  Courts  should  decide  against  ap- 
pellant, it  would  be  entitled  to  have  such  decision  reviewed  by  the 
Supreme  Court  of  the  State  of  Missouri,  and  we  have  no  reason  to 
suppose  that  that  court  will  not  do  justice  between  the  parties  and 
give  effect  to  the  rules  of  law  applicable  to  the  case. 

The  judgment  of  the  Appellate  Court  will  be  affirmed. 


Cll.    1)  IXTRODUCTION.  19 

* 

SNOOK  et  al.   v.  SNETZER. 
(Supreme  Court  of  Ohio,  1874,  25  Ohio  St.  51G.) 

Rex,  J.  The  assignments  of  error  and  the  arguments  in  the  case 
present  two  questions  for  the  determination  of  this  court. 

The  first  question  relates  to  the  exemption  laws  of  this  state,  and 
makes  the  point,  whether,  hy  the  laws  in  force  when  the  debt  in 
question  was  contracted,  June  2,  1866,  the  earnings  of  the  debtor  for 
his  personal  services  within  the  three  months  next  preceding  when 
necessary  for  the  use  and  support  of  his  family,  were  exempt  from 
being  applied  to  the  payment  of  his  debts.  The  policy  of  this  state, 
as  exhibited  by  its  legislation  for  more  than  a  quarter  of  a  century, 
had  been  to  protect  the  family  of  a  debtor,  in  some  measure,  from  the 
consequences  of  debts  contracted  by  its  head.  .  .  .  Construing  the 
provisions  of  the  code  in  accordance  with  well-established  rules  on 
that  subject,  we  have  no  doubt  that  by  these  provisions  it  was  intended 
to  exempt,  as  well  in  attachment  as  under  the  proceedings  in  aid  of 
execution,  the  earnings  of  the  debtor  for  his  personal  services  for  the 
time  prescribed,  where  the  same  were  necessary  for  the  purpose  named. 

The  remaining  question  to  be  determined  is :  Have  the  courts  of 
this  state  authority,  upon  the  petition  of  a  resident  who  is  the  head  of 
a  family,  by  injunction,  to  restrain  a  citizen  of  the  county  in  which 
the  action  is  commenced  from  proceeding  in  another  state  to  attach 
the  earnings  of  such  head  of  a  family  with  a  view  to  evade  the  exemp- 
tion laws  of  this  state,  and  to  prevent  such  head  of  a  family  from  avail- 
ing himself  of  the  benefit  of  such  laws? 

The  authority  of  the  courts  in  such  a  case  to  restrain  a  citizen  from 
thus  proceeding  for  the  purpose  named,  is,  in  our  opinion,  clear  and 
indisputable. 

In  exercising  this  authority,  courts  proceed,  not  upon  any  claim  of 
right  to  control  or  stay  proceedings  in  the  courts  of  another  state  or 
country,  but  nyxm  the  ground  that  the  person  on  whom  the  restraining 
order  is  made  resides  within  the  jurisdiction  and  is  in  the  power  of 
the  court  issuing  it.  The  order  operates  upon  the  person  of  the  party, 
and  directs  him  to  proceed  no  further  in  the  action,  and  not  upon  the 
court  of  the  foreign  state  or  country  in  which  the  action  is  pending. 
On  this  subject,  Mr.  Justice  Story,  in  his  Commentaries  on  Equity 
Jurisprudence,  section  899,  says :    "Although  the  courts  of  one  country 


20  INTRODUCTION.  (Part  1 

have  no  authority  to  stay  proceedings  in  the  courts  of  another,  they 
have  an  undoubted  authority  to  control  all  persons  and  things  within 
their  territorial  limits.  When,  therefore,  both  parties  to  a  suit  in  a 
foreign  country  are  resident  within  the  territorial  limits  of  another 
country,  the  courts  of  equity  in  the  latter  may  act  in  personam  upon 
those  parties,  and  direct  them,  by  injunction,  to  proceed  no  further 
in  such  suit."  In  such  a  case,  these  courts  act  upon  acknowledged 
principles  of  public  law  in  regard  to  jurisdiction.  They  do  not  pre- 
tend to  direct  or  control  the  foreign  court,  but,  without  regard  to  the 
situation  of  the  subject-matter  of  dispute,  they  consider  the  equities 
between  the  parties  and  decree  /;;  personam  according  to  those  equities, 
and  enforce  obedience  to  their  decrees  /';;  personam. 


THE  PORT  ROYAL  RAILROAD  COMPANY  v.  HAMMOND. 

(Supreme  Court  of  Georgia,  1877,  58  Ga.  523.) 

Warner,  C.  J.  The  defendant  is  a  Georgia  corporation,  created 
by  an  act  of  the  general  assembly  of  this  state,  and  its  powers  and 
duties  are  to  be  exercised  and  performed  within  the  territorial  limits 
of  the  state.  As  an  artificial  person,  it  has  no  extra-territorial  exist- 
ence— 14  Ga.  Rep.,  328.  The  object  and  prayer  of  the  complainant's 
bill  is,  that  the  defendant  may  be  decreed  to  specifically  execute  the 
contract,  alleged  to  have  been  made  with  the  defendant,  for  the  right 
of  way  for  its  railroad  through  the  lands  of  the  complainant,  situated 
and  being  in  the  state  of  vSouth  Carolina,  and  to  recover  damages  for 
the  injury  already  sustained  from  the  non-performance  of  that  con- 
tract. The  complainant's  equity  is  based  upon  his  alleged  right  to 
have  the  defendant  compelled,  by  a  decree  of  the  court  of  this  state, 
to  specifically  perform  the  alleged  contract  in  the  state  of  South  Car- 
ohna,  by  keeping  the  ditches  open  upon  the  complainant's  land,  situated 
in  that  state,  to  the  depth  of  five  feet,  and  to  construct,  and  keep  in 
proper  repair,  sufficient  cattle-guards  or  stock-gaps,  upon  the  com- 
plainant's land,  in  the  state  of  South  Carolina.  There  is  no  doubt 
that  when  a  court  of  equity  has  jurisdiction  of  the  person  of  a  de- 
fendant, it  may  decree  the  specific  performance  of  a  contract  for  the 
conveyance  of  land  situated  in  a  foreign  state  or  country,  and  also 
'restrain  a  defendant  by  injunction  in  certain  specified  cases,  by  acting 


Cll.    1)  IXTRODUCTIOX.  21 

upon  the  person  of  the  defendant  within  its  jurisdiction;  and  that  is 
the  principle  which  the  complainant  insists  should  be  applied  to  the 
defendant  in  this  case.  Although  a  court  of  equity  will  act  upon  the 
person  of  a  defendant  within  its  jurisdiction,  and  compel  the  specific 
execution  of  a  contract  in  relation  to  lands  in  a  foreign  state,  on  a 
proper  case  being  made,  still,  we  are  not  aware  that  the  court  has  ever 
gone  to  the  extent  of  compelling  a  defendant  by  its  decree,  to  go  into 
a,  foreign  state  and  specifically  execute  a  contract  there,  even  in  the 
case  of  a  natural  person ;  and,  more  especially,  when  the  defendant  is 
an  artificial  person,  having  no  legal  existence  beyond  the  territorial 
limits  of  the  state  which  created  it. 

The  court  of  equity  of  Richmond  county,  in  this  state,  had  no  juris- 
diction to  compel  the  defendant,  by  its  decree,  to  go  into  the  state 
of  South  Carolina  and  specifically  execute  the  alleged  contract,  as 
set  forth  in  complainant's  bill,  by  opening  the  ditches  on  complain- 
ant's land  there,  and  keeping  the  same  open  to  the  depth  of  five  feet, 
and  by  constructing  and  keeping  in  repair  proper  and  sufficient  cattle- 
guards,  or  stock-gaps  thereon,  and,  upon  its  failure  to  do  so,  to  en- 
force that  decree  by  an  attachment  and  sequestration  of  its  property 
in  this  state. 

If  the  acts  required  to  be  done  on  the  part  of  the  defendant,  by  the 
decree  of  the  court,  in  the  specific  execution  of  the  contract  in  question, 
were  required  to  be  performed  in  this  state,  there  would  not  seem  to 
be  any  well-founded  objection  to  the  jurisdiction  of  the  court,  notwith- 
standing the  land,  the  subject  matter  of  the  contract,  is  situated  in  the 
state  of  South  Carolina.  This,  however,  is  as  far  as  the  principle  con- 
tended for  has  been  recognized.  See  Wharton  on  Conflict  of  Laws, 
sections  288,  289,  290.  But  the  specific  execution  of  the  contract,  as 
prayed  for  in  complainant's  bill,  can  only  be  performed  by  going  on 
the  land  in  South  Carolina  and  cutting  ditches  upon  it  there  to  the 
depth  to  five  feet,  and  keeping  them  open  so  as  to  effect  the  stipulated 
drainage  of  the  land,  and  by  constructing  and  keeping  in  repair  proper 
and  sufficient  .stock-gaps  thereon.  'I'o  hold  that  the  court  has  jurisdic- 
tion to  grant  the  specific  relief  prayed  for  against  the  defendant,  would 
be  to  decide  that  a  corporation,  an  artificial  person,  having  no  legal  ex- 
istence beyond  the  territorial  limits  of  the  state  which  created  it,  can 
be  compelled  to  go  into  another  state  in  which  it  lias  no  legal  existence, 
and  there  to  cut  and  keep  open  ditches,  construct  and  keep  in  repair 


22  INTRODUCTION.  (Part  1 

stock -gaps  on  the  complainant's  land  in  that  state,  and,  upon  its  fail- 
ure to  do  so,  that  its  property,  in  this  state,  may  be  attached  and  se- 
questered to  compel  the  performance  of  such  specific  acts  by  the  de- 
fendant in  a  state  and  country  where  it  has  no   legal   existence  to 
perform  the  same.     ...     It   would,  therefore,   seem   to   be   much 
more  equitable  and  just  that  the  complainant  should  seek  a  specific 
execution  of  the  alleged  contract  against  the  corporation  with  which 
it  was  made,  and  in  the  courts  of  the  state  in  which  the  land  is  situatecl, 
and  obtain  his  decree  in  accordance  with  the  laws  of  that  state,  and 
where  the  court  will  have  no  jurisdiction  to  enforce  it  in  conformity 
therewith.     The  specific  execution  of  contracts  by  a  court  of  equity 
must  always  rest  in  the  sound  discretion  of  the  court.     To  compel  the 
Georgia  corporation,  by  a  decree  of  the  court,  to  specifically  perform 
the  alleged  contract,  made  by  the  complainant  with  the  South  Carolina 
corporation,  and  to  enforce  its  performance  in  the  latter  state  by  an 
attachment  and  sequestration  of  its  property  situated  in  Georgia,  would 
be  unfair,  unjust,  and  against  good  conscience,  inasmuch  as  its  prop- 
erty in  this  state  may  not  be  more  than  sufficient  to  discharge  its  own 
contracts  and  liabilities  to  its  creditors  here. 

In  our  judgment  the  court  erred  in  overruling  the  defendant's  de- 
murrer to  the  complainant's  bill. 

Let  the  judgment  of  the  court  below  be  reversed. 


BABCOCK  V.  McCAMANT. 

(Supreme   Court   of   Illinois,    1870,   53    111.   215.) 

Walker,  J.  ...  It  has  long  been  the  practice,  in  equity,  to  en- 
join the  collection  of  a  judgment  that  has  been  paid,  satisfied,  or  it  has 
otherwise  become  inequitable  to  enforce;  and  our  statute  has  recog- 
nized the  right  to  enjoin  judgments.  But  it  is  urged  that  the  remedy 
was  complete  under  the  statute,  by  applying  to  the  circuit  judge  at 
chambers,  to  order  a  stay  of  proceedings  under  the  execution,  until  a 
motion  to  quash  the  execution  and  levy  could  be  heard  at  the  next 
term.  This  may  be  true  of  the  execution,  and  a  levy,  but  it  is  not 
clear  that  the  circuit  court  could  correct  the  judgment  on  a  motion.  But 
even  if  it  could,  it  is  more  satisfactory  and  complete  to  grant  the  re- 
lief in  equity.    The  facts  alleged  and  admitted  by  the  demurrer,  show 


Ch.    1)  IXTRODUCTIOX.  2o 

gross  fraud,  and  fraud  is  a  matter  of  equity  jurisdiction,  and  that 
court  did  not  lose  it  by  the  statute  conferring  similar  jurisdiction  upon 
the  courts  of  law.  It.  then,  under  the  statute,  or  the  inherent  power 
of  a  court  of  law  to  control  its  process  and  records,  that  court 
could  correct  the  judgment,  still  it  would  not  deprive  equity  of  juris- 
diction.    ... 


RHOTEN  V.  BAKER. 

(Appellate   Court   of    Illinois,    1902,    104    111.    App.    653.) 

Wright,  P.  J.  This  was  a  bill  in  equity  filed  by  the  plaintiff  in 
error  against  the  defendants  in  error  to  require  the  latter  to  accept 
the  damages  and  pay  the  benefits  assessed  by  a  jury  for  the  laying 
out  and  opening  of  a  road  for  private  and  public  use,  under  the  pro- 
visions of  section  54  of  the  act  in  regard  to  roads  and  bridges  under 
township  organization,  and  to  prevent  the  defendants  from  combining 
and  confederating  together  to  defeat  the  opening  of  such  road.  The 
court  sustained  a  demurrer  to  the  bill  and  dismissed  it  for  want  of 
equity,  and  to  reverse  the  decree  this  writ  of  error  is  prosecuted.  .  . 
In  these  conditions  plaintiff*  claims  no  adequate  remedy  exists  at  law, 
and  that  he  is  without  such  remedy  save  in  a  court  of  equity. 

It  is,  however,  insisted  by  the  defendants  that  inasmuch  as  the 
statute  gives  to  the  verdict  of  the  jury  in  such  cases  the  force  and 
effect  of  a  judgment,  which  it  does,  that  plaintiff's  remedy  is  at  law; 
desiring  it  to  be  inferred,  we  presume,  that  an  execution  might  be  is- 
sued upon  the  judgment  for  the  damages  assessed.  .  .  .  Plaintiff, 
therefore,  by  the  facts  stated  in  his  bill,  admitted  by  the  dcmuirer,  had 
a  right  to  the  road  in  question,  and  by  the  same  facts  defendants 
wrongfully  obstructed  such  rights  in  such  manner  as  the  law  could 
afford  no  adequate  remedy  for  the  wrong  done  by  the  defendants.  If 
we  are  right  in  this  conclusion,  and  we  feel  sure  of  that,  then  no  au- 
thority need  be  cited  to  prove  thai  a  bill  in  e(iuity  is  the  appropriate 
remedy ;  for  when  a  right  is  given  to  a  person,  then  wrongfully  tak'en 
away  by  another,  and  the  law  by  reason  of  its  universality  can  not 
afford  a  remedy  in  the  peculiar  circumstances  of  the  case,  equity  will 
correct  the  law  and  furnish  the  remedy. 

Reversed  and  remanded. 


24  iNTEODucTioj«r.  (Part  1 

TOLEDO,  A.  A.  &  N.  M.  RY.  CO.  v.  PENNSYLVANIA  CO.  et  al. 

(U.   S.   Circuit   Court,   1893,   54   Federal   Reporter   746.) 

Ricks,  J.  .  .  .  It  is  said  the  orders  issued  in  this  case  are  with- 
out precedent.  Every  just  order  or  rule  known  to  equity  courts  was 
born  of  some  emergency,  to  meet  some  new  conditions,  and  was,  there- 
fore, in  its  time,  without  a  precedent.  If  based  on  sovmd  principles, 
and  beneficent  results  follow  their  enforcement,  afifording  necessary 
relief  to  the  one  party  without  imposing  illegal  burdens  on  the  other, 
new  remedies  and  unprecedented  orders  are  not  unwelcome  aids  to 
the  chancellor  to  meet  the  constantly  varying  demands  for  equitable 
relief.  Mr.  Justice  Brewer,  sitting  in  the  circuit  court  for  Nebraska, 
said:  "I  believe  most  thoroughly  that  the  powers  of  a  court  of  equity 
are  as  vast,  and  its  processes  and  procedure  as  elastic,  as  all  the  chang- 
ing emergencies  of  increasingly  complex  business  relations  and  the 
protection  of  rights  can  demand."  Mr.  Justice  Blatchford,  speaking 
for  the  supreme  court  in  Joy  v.  St.  Louis,  138  U.  S.  1,  U  Sup.  Ct.  Rep. 
243,  said:  "  .  .  .  It  is  one  of  the  most  useful  functions  of  a  court 
of  equity  that  its  methods  of  procedure  are  capable  of  being  made 
such  as  to  accommodate  themselves  to  the  development  of  the  interests 
of  the  public  in  the  progress  of  trade  and  traffic  by  new  methods  of 
intercourse  and  transportation." 


MORRIS  V.  PARRY. 

(Missouri  Court  of  Appeals,  1904,  110  Mo.  App.  675,  85  S.  W.  620.) 

loHNSOx,  L  .  .  .  The  relief  granted  by  the  court  under  this 
strange  petition  is  contained  in  the  following  portion  of  the  decree, 
"that  the  testimony  of  John  H.  Winkle  incorporated  in  the  disposition 
of  said  John  H.  Winkle  on  file  in  the  office  of  the  clerk  of  the  circuit 
court  of  Barton  county  in  the  case  of  R.  E.  Smith  against  Joseph  C. 
Parry  and  Nancy  C.  Parry,  defendants,  be  and  the  same  is  hereby  es- 
tablished and  perpetuated  as  and  for  the  testimony  of  the  said  John  H. 
Winkle  for  the  purpose  of  establishing  the  existence  of  said  deed  of 


Ch.    1)  INTRODUCTION.  2 


S,) 


said  Joseph  C.  Parry  and  Josephine  Parry  to  Barton  county  .  . 
and  in  all  suits  by  Nancy  C.  Parry  having  for  the  purpose  the  establish- 
ment of  a  right  of  dower  in  her  as  the  widow  of  Joseph  C.  Parry  in  and 
to  said  real  estate  against  all  persons  whomsoever  the  same  is  hereby 
decreed  to  be  competent  testimony."  A  certified  copy  of  the  decree 
was  ordered  to  be  filed  and  recorded  in  the  office  of  the  recorder  of 
deeds. 

This  proceeding  does  not  fall  within  the  purview  of  statutory  law — 
Revised  Statutes,  sections  4525-4542  and  4565-4571 — nor  is  the  rem- 
edy sought  one  known  to  equity  jurisprudence.  Every  remedy,  legal 
or  equitable,  having  for  its  object  the  perpetuation  of  testimony,  is 
confined  to  the  testimony  of  witnesses  in  being.     .     .     . 

Respondent,  freely  conceding  that  no  precedent  exists  in  support  of 
his  novel  claim,  invokes  the  aid  of  the  general  power  inherent  in 
equity  to  provide  a  remedy  where  one  is  lacking  for  the  protection  of 
a  right  under  the  maxim,  "equity  will  not  sufifer  a  right  to  be  without 
a  remedy."  It  is  true,  as  urged:  "every  just  order  or  rule  known 
to  equity  courts  was  born  of  some  emergency  to  meet  some  new  con- 
dition and  was,  therefore,  in  its  time  without  precedent,"  and  "the 
powers  of  a  court  of  equity  are  as  vast  and  its  processes  and  procedure 
as  elastic  as  all  the  changing  emergencies  of  increasingly  complex  bus- 
iness relations  and  the  protection  of  rights  can  demand."  But  however 
far-reaching  and  puissant  the  arm  of  equity  may  be,  it  has  its  sphere 
of  operation  to  which  it  is  confined.  It  supplements  and  aids  the 
law,  does  not  invade  its  domain  and  never  works  for  the  destruction 
of  legal  right  nor  in  opposition  thereto.  "Equity  will  not  give  a  rem- 
edy in  direct  contravention  of  a  positive  rule  of  law."  (Bispham's 
Princ.  of  Eq.,  sec.  37;  Story's  l\q.  Juris.,  sec.  12.) 

What  is  the  real  aim  and  object  of  this  proceeding?  Stripped  of 
verbal  embellishments  and  reduced  to  naked  fact,  it  is  an  attempt  to 
force  the  admission  of  incompetent  testimony  at  the  trial  of  the  dower 
suit.  That  the  evidence  is  incompetent  is  confessed  and  urged  as  a 
ground  for  equitable  relief.  If  competent,  there  is  abundant  authority 
in  this  State  justifying  its  admission  without  the  aid  of  equity.  .  .  . 
The  decree  in  this  case  presents  the  anomaly  of  a  court  sitting  as  a 
chancellor  making  an  order  upon  himself  as  trial  judge  to  admit  as 
evidence  in  an  action  pending  before  him  in  the  latter  capacity  the  de- 
position of  a  deceased  witness  taken  in  another  cause  clearly  incom- 


26  INTRODUCTION.  (Pai't    1 

petent  under  elementary  principles  of  law,  for  this  is  all  the  decree 
amounts  to.     .     .     . 

The  testimony  of  the  witness,  now  deceased,  taken  in  the  form  of 
a  deposition  over  ten  years  ago  in  the  suit  of  Smith  against  the  de- 
fendant herein  and  her  husband,  is  incompetent  as  evidence  in  the 
pending  dower  suit  brought  by  defendant  against  plaintitT,  for  the 
reason  that  it  is  hearsay.  It  is  true,  the  question  of  title  involved  in 
the  pending  cause  is  the  same  as  in  Smith  against  this  defendant,  but 
the  parties  are  different  and  there  is  no  privity  between  the  plaintiff 
in  the  last-mentioned  action  and  the  defendant  in  the  one  pending.  The 
land  involved  in  the  two  suits  is  different.     .     .     . 


SULLIVAN  V.  PORTLAND.  ETC.,  R.  R.  CO. 

(Supreme  Court  of  the  United  States,  1876,  94  U.  S.  806.) 

SwAYNE,  J.  .  .  .  To  let  in  the  defense  that  the  claim  is  stale, 
and  that  the  bill  cannot,  therefore,  be  supported,  it  is  not  necessary 
that  a  foundation  shall  be  laid  by  any  averment  in  the  answer  of  the 
defendants.  If  the  case,  as  it  appears  at  the  hearing,  is  liable  to  the 
objection  by  reason  of  the  laches  of  the  complainants,  the  court  will, 
upon  that  ground,  be  passive,  and  refuse  relief.  Every  case  is  gov- 
erned chiefly  by  its  own  circumstances ;  sometimes  the  analogy  of  the 
Statute  of  Limitations  is  applied ;  sometimes  a  longer  period  than 
that  prescribed  by  the  statute  is  required ;  in  some  cases  a  shorter  time 
is  sufficient ;  and  sometimes  the  rule  is  applied  where  there  is  no  statu- 
table bar.  It  is  competent  for  the  court  to  apply  the  inherent  principles 
of  its  own  system  of  jurisprvidence,  and  to  decide  accordingly.  Wilson 
v.  Anthony.  19  Barber  (Ark.).  16;  Taylor  v.  Adams,  14,  id.  62;  John- 
son V.  Johnson.  5  Ala.  90;  Person  v.  Sanger.  2  Ware,  256;  Fisher  v. 
Boody,  1  Curtis,  219;  Cholmondly  v.  Clinton,  2  Jac.  &  Walk.  141;  2 
Story's  Eq.,  sect.  1520a. 

"A  court  of  equity,  which  is  never  active  in  giving  relief  against  con- 
science or  public  convenience,  has  always  refused  its  aid  to  stale  de- 
mands where  a  party  has  slept  upon  his  rights,  and  acquiesced  for  a 
great  length  of  time.  Nothing  can  call  forth  this  court  into  activity 
but  conscience,  good  faith,  and  reasonable  diligence.  Where  these  are 
wanting,  the  court  is  passive,  and  does  nothing.     Laches  and  neglect 


Cll.    1)  INTRODUCTION.  27 

are  always  discountenanced ;  and.  therefore,  from  the  beginning  of  this 
jurisdiction  there  was  always  a  limitation  lo  suits  in  this  court."  Smith 
V.  Clay,  Ambler,  645.     ... 


SCOTT  V.  MAGLOUGHLIN. 

(Supreme  Court  of  Illinois,  1890,  13.1   111.  :i3,  24  N.   E.  1030.)  ■ 

Shope,  C.  J.  A  bill  in  equity  was  filed  by  appellants  to  foreclose 
a  trust  deed  dated  February  2.  1885,  executed  by  John  Magloughlin 
and  wife  to  John  W.  Scott,  as  trustee,  to  secure  the  payment  of  a 
promissory  note  of  the  same  date,  for  $1000,  payable  in  one  year,  and 
made  by  said  John  Magloughlin  payable  to  his  order,  and  indorsed 
by  him  in  blank.  The  note  is  claimed  by  appellants  to  have  been  ex- 
ecuted for  an  indebtedness  due  and  owing  from  Magloughlin  to  Robert 
Blair,  and  to  have  been  delivered  to  said  Robert  or  to  William  T.  Blair. 
The  blank  indorsement  had,  at  the  hearing,  been  filled  up  by  writing 
over  the  name  of  Magloughlin  the  words,  "pay  to  order  of  Albert  B. 
Clark."     .     .     . 

The  defenses  set  up  were,  in  substance,  that  there  was  no  consider- 
ation for  the  note,  and  that  the  note  and  trust  deed  were  executed  at 
the  suggestion  and  instance  of  William  T.  Blair  to  cover  up  the  equi- 
table title  of  Robert  Blair  in  the  premises  thereby  conveyed,  for  the 
purpose  of  defeating  the  claim  for  alimony  of  the  wife  of  said  Robert, 
in  a  pending  proceeding  for  divorce  against  him.     .     .     . 

Appellants  come  into  a  court  of  equity  and  ask  that  the  equitable 
rights  of  Clark  be  enforced  by  a  foreclosure  of  the  trust  deed.  In 
that  proceeding  the  note  is  a  mere  incident  to  the  relief  sought,  while 
the  trust  deed  is  the  foundation  of  the  right  to  relief  in  equity.  The 
uniform  holding  in  this  State,  is  that  a  mortgage  is  a  mere  chose  in 
action,  and  when  the  powers  of  a  court  of  equity  are  called  into  ac- 
tivity to  enforce  it,  relief  will  l)e  denied  if  there  are  equitable  reasons 
why  its  power  should  be  withheld,  or  if,  in  e(iuity  and  good  conscience, 
the  relief  asked  should  be  granted.  It  may  be  conceded  that  if  Clark  was 
an  assignee  for  value  before  maturity  of  the  note  (which  he  was  not), 
he  would,  under  the  statute  respecting  negotiable  instrumenls,  be  pro- 
tected against  these  defenses  in  a  suit  upon  the  note  ;  yet,  tiie  tnust  deed 
not  being  negotiable,  the  right  resting  in  him  would  be  an  ecjuitable 


28  INTRODUCTION.  (Part  1 

right  only,  and  he  would  take  it  subject  to  the  legal  and  equitable 
defenses  to  which  it  was  liable  before  it  came  to  his  hands.  There  arc 
some  exceptions  to  the  rule,  perhaps ;  but  upon  examination  it  will 
be  found  that  the  right  of  Clark  falls  within  none  of  them.  A  court 
of  equity,  when  its  power  is  invoked,  will  not  deprive  a  party,  unless 
controlled  by  some  inflexible  rule  of  law,  of  such  defenses,  either 
legal  or  equitable,  as  are  intrinsically  just  in  themselves,  or  permit  the 
complainant  to  recover  contrary  to  the  principles  of  equity.  Olds  v. 
Cummings  et  al.,  31  111.  188;  Sumner  et  al.  v.  Waugh  et  al,  56  id.  538; 
Walker  v.  Dement,  42  id.  280;  Thompson  v.  Shoemaker,  68  id.  256; 
Brvant  v.  Vix,  83  id.  14.     .     .     . 


HERCY  V.  BIRCH. 

(High  Court  of  Chancery,  1804,  y  Vesey  357.) 

By  Indentures,  dated  the  1st  of  June,  1787,  between  Lovelace  Hercy, 
Thomas  Birch,  and  Abraham  Henry  Chambers,  reciting,  that  they  had 
on  the  25th  of  March  last  commenced  co-partners  in  the  business  of 
a  banker,  it  was  agreed,  that  they  should  continue  to  carry  on  the 
said  business  for  the  term  of  ten  years ;  and  that  in  case  any  or  either 
of  them  should  after  the  expiration  of  that  partnership  continue  to 
carry  on  the  business  of  a  banker,  either  alone  or  in  partnership  with 
any  other  person,  until  any  one  or  more  of  the  parties  to  the  indenture 
should  have  a  legitimate  or  illegitimate  son,  whom  the  father  should  by 
writing  or  by  his  will  desire  to  have  introduced  to  the  said  business, 
and  who  should  live  to  attain  the  age  of  sixteen,  the  party  or  parties  to 
the  indenture,  who  should  so  carry  on  the  said  business  of  a  banker, 
should  take  such  son,  whether  legitimate  or  illegitimate,  apprentice  for 
five  years ;  and  after  the  expiration  of  such  apprenticeship  should  re- 
ceive him  into  the  partnership,  then  carried  on  by  any  of  the  parties, 
and  admit  him  to  an  equal  share  with  the  then  partners,  so  soon  after 
his  age  of  21  as  might  be;  but  not  till  after  20  years  from  the  date 
of  the  indenture.     .     .     . 

The  bill  was  filed  by  that  illegitimate  son,  having  attained  sixteen 
years  of  age,  against  the  partners,  praying,  that  the  Defendants  may 
be  decreed  specifically  to  perform  the  agreement  in  the  said  indenture, 
and  take  the  Plaintiff  apprentice,  and  at  the  expiration  of  the  appren- 


C]l.    1)  IXTRODUCTIOX.  29 

ticeship  admit  him  to  an  equal  share  of  such  business  Sec.     .     .     , 

The  Lord  Chancellor  (Eldon).  .  .  .  As  to  the  question,  whether 
this  Court  would  decree  execution  of  such  a  covenant,  if  the  law  had 
determined,  that  he  might  have  damages  against  them  for  refusing 
to  take  him  apprentice,  it  would  be  difficult  to  refuse  him  the  ordinary 
relief  this  Court  gives ;  but  what  rule  is  to  form  his  share  of  the  profits? 
With  respect  to  the  object  of  this  covenant,  no  one  ever  heard  of  this 
Court  executing  an  agreement  for  a  partnership,  when  the  parties 
might  dissolve  it  immediately  afterwards. 

I  am  of  opinion,  this  is  such  a  covenant,  as  this  Court  cannot  spe- 
cifically execute. 

The  bill  was  dismissed. 


30  SPECIFIC    PERFOEMANCE    OF  CONTEACTS  (Part    I 


CHAPTER  II.  SPECIFIC  PERFORMANCE 
OF  CONTRACTS. 


SECTION  I.  IN  GENERAL 


DARST  V.  KIRK. 

(Supreme  Court  of  Illinois,  1907,  230  111.  521,  82  N.  E.  862.) 

Hand,  C.  J.  .  .  .  The  law  is  well  settled  that  parties  to  a  suit 
cannot  ordinarily  confer  jurisdiction  upon  a  court  over  the  subject-mat- 
ter of  a  suit  by  stipulation  or  consent  where  by  law  the  jurisdiction 
of  the  subject-matter  of  the  suit  has  been  conferred  upon  another 
court.  To  illustrate :  The  parties  to  an  action  at  law  could  not,  by 
stipulation  or  consent,  confer  upon  a  court  of  chancery  jurisdiction 
to  try  an  action  of  trespass  or  slander,  and  in  such  case  the  decree  of 
the  court,  if  entered,  would  doubtless  be  a  nullity,  although  the  jurisdic- 
tion of  the  court  passed  unchallenged.  There  is,  however,  another 
class  of  cases,  involving  matters  of  contract  and  the  like,  which,  while 
they  do  not  come  within  the  ordinary  jurisdiction  of  a  court  of  equity, 
yet  only  want  some  equitable  element  to  bring  them  within  such  juris- 
diction, and  in  such  cases  the  defendant  by  his  action  may  estop  him- 
self to  afterward  raise  the  question  of  jurisdiction  in  the  trial  or  upon 
appeal.  In  both  cases  there  is  a  want  of  jurisdiction.  In  the  first 
there  is  a  total  want  of  power  to  hear  and  determine  the  case,  and  in 
the  other  the  want  of  power  is  not  absolute,  but  qualified.  In  the  first 
class  a  stipulation  or  consent  conferring  jurisdiction  would  be  void, 
while  in  the  latter  class  it  would  be  binding  upon  the  parties.  (Rich- 
ards V.  Lake  Shore  and  Michigan  Southern  Railway  Co.,  124  111. 
516.)  In  this  case  a  partnership  had  existed  between  the  appellant 
and  appellee,  and  while  they  had  transferred  the  partnership  property 
and  business  to  the  corporation  organized  by  them  under  the  name  of 
the  Rex  Manufacturing  Company,  it  does  not  appear  that  there  had 
been  a  settlement  of  said  partnership  matters  between  them,  and  the 


Cll.    2)  IN   GENERAL.  31 

stock  for  which  the  $3,000  was  received  was  stock  of  the  corporation 
received  in  payment  of  the  partnership  husiness  tnrned  over  to  the 
corporation. 

The  settlement  of  partnership  matters  and  the  adjustment  of 
partnership  accounts  are  fruitful  sources  of  litigation  and  fall  wiUiiu 
the  jurisdiction  of  courts  of  equity.  If  the  appellant  had  been  lirought 
into  a  court  of  chancery  by  the  filing  of  a  bill  and  the  service  of  process 
to  answer  for  non-payment  of  said  $1,200  in  the  tirst  instance,  there 
might  have  been  some  force  in  the  position  that  he  should  have  been 
sued  for  said  sum  of  $1,200  in  an  action  at  law;  but  he  having  been 
sued  in  an  action  at  law  and  thereafter  stipulated  that  the  case  should 
be  transferred  to  the  chancery  side  of  the  docket  of  the  court  where 
it  was  pending,  and  that  the  pleadings  should  be  amended  and  the 
case  should  thereafter  proceed  as  a  chancery  suit,  in  view  of  the  fact 
that  the  subject-matter  of  the  suit  grew  out  of  a  partnership  matter, 
we  think  the  suit  should  be  held  to  fall  within  the  second  class  of 
cases  above  referred  to,  and  that  this  is  a  case  in  which  iunsdiction 
may  be  conferred  upon  a  court  of  chancery  by  the  stipulation  or  con- 
sent of  the  parties,  and  that  the  appellant  should  be  held  to  be  estop- 
ped by  said  stipulation  from  raising  the  question  of  the  want  of  juris- 
diction in  a  court  of  chancery  to  hear  and  determine  this  cause.  City 
of  Chicago  v.  Drexel,  141  111.  89;  Mertens  v.  Roche,  39  N.  Y.  App. 
Div.  398.     ... 


ST.  LOUIS  RANGE  CO.   v.   KLINE-DRUMMOND   MERCAN- 
TILE CO. 

(Missouri  Court  of   Appeals,    190(5,    120   Mo.   App.  4:58.  DG   S.   W.    1040.) 

GooDK,  [.  .  .  .  The  case  is  that  of  a  vendee  of  per.sonal  i)rop- 
erty  who  has  refused  to  accept  the  goods  bought,  and  as  different 
rules  for  the  measurement  of  damages  are  laid  down  in  sucli  cases 
according  to  the  circumstances  presented,  it  is  essential  to  li.\  in  mind 
the  important  facts  of  the  present  controversy.  At  the  time  of  de- 
fendant's refusal  to  accept  any  more  ranges,  plaintiff  had  on  hand  six 
hundred  and  three,  of  which  al)out  twenty-five  were  coni])IeUil  and 
ready  for  delivery  and  all  the  parts  of  the  others  were  manufactured 
and  ready  to  be  put  together.     .     .     . 


32  SPECIFIC   PEEFOEMANCE   OF  CONTEACTS  (Part    1 

If  the  buyer  of  personalty  refuses  to  accept  the  subject-matter  of 
the  bargain  when  tendered  by  the  seller  in  proper  condition  and  at  the 
proper  time  and  place,  the  law  allows  the  seller  several  modes  of  re- 
dress.   If  the  contract  has  been  so  far  performed  by  the  seller  that  the 
property  is  ready  for  delivery  before  he  has  notice  or  knowledge  of 
the  buyer's  intention  to  decline  acceptance,  he  may  treat  the  property 
as  belonging  to  the  buyer,  hold  it  subject  to  the  latter's  order  and  re- 
cover the  full  agreed  price ;  or  he  may  sell  it  for  the  buyer's  account, 
taking  the  requisite  steps  to  protect  the  latter's  interest  and  get  the 
best  price  obtainable,  and  then  recover  the  difference  between  the 
proceeds  of  the  sale  and  the  agreed  price ;  or  he  may  treat  the  sale  as 
ended  by  the  buyer's  default  and  the  property  as  his  (the  seller's)  and 
recover  the  actual  loss  sustained,  which  is  ordinarily  the  difference 
between  the  agreed  price  and  the  market  price.  (Dobbins  v.  Edmonds, 
18  Mo.  App.  307,  317;  Kingsland  v.  Iron  Co.,  29  Mo.  App.  526;  Lum- 
ber Co.  V.  Chicago  Lumber  Co.,  51  Mo.  App.  555;  Richey  v.  Tenbroek, 
63  Mo.  563;  Hayden  v.  Demetz,  53  N.  Y.  426,  431.)     Where  specific 
articles  are  sold,  and  especially  where  they  are  manufactured  pursuant 
to  an  order  from  the  vendee,  the  title  is  regarded,  usually,  as  having 
vested  in  the  latter  without  delivery,  so  as  to  give  the  vendor  the  right, 
on  refusal  to  accept,  to  recover  the  stipulated  price.    Under  such  cir- 
cumstances the  case  presented  is  different  from  that  of  a  sale  of  goods 
generally,  like  merchandise  or  corporate  stocks  currently  dealt  in,  when 
it  is  contemplated  that  specific  articles  or  stocks  shall  be  subsequently 
selected  and  delivered  pursuant  to  the  contract.    (Bethel  St.  Co.  v. 
Brown,  57  Maine  9;  Page  v.  Carpenter,  10  N.  H.  77;  Brookwalter  v. 
Clark,  10  Fed.  793 ;  Shawhan  v.  Van  Nest,  25  Ohio  St.  490 ;  Mitchell 
V.   LeClaire,    165   Mass.   305.)      The   decisions   holding  vendees    re- 
sponsible for  the  full  contract  price  in  cases  of  specific  articles  manu- 
factured for  them,  proceed  on  the  assumption  that  they  have  acquired 
title  to  the  property  and  that  it  is  held  subject  to  their  order,  or  else 
that  it  is  worthless  in  the  hands  of  the  vendors  so  that  the  latter  can- 
not partly  reimburse  themselves  for  their  loss  by  using  or  disposing 
of  it.     (Black  River  Lumber  Co.  v.  Warner,  93  Mo.  374,  6  S.  W.  210; 
Crown  Vinegar  &  Spice  Co.  v.  Whers,  69  Mo.  App.  493 ;  Brookwalter 
V.  Clark,  supra.)     In  the  Missouri  cases  just  cited,  the  property  sold 
had  been  manufactured  and  was  ready  for  delivery.     The  opinion  in 
Lumber  Co.  v.  Warner  says  that  when  the  subject-matter  of  the  con- 
tract is  specific  articles  made  for  the  vendee,  and  the  vendor  has  com- 


Ch.    2)  IN   GENERAL.  S'^] 

pleted  his  contract,  it  is  just  that  the  damages  in  case  of  refusal  to 
accept  the  goods  shall  be  their  contract  price ;  but  that  the  vendor  will 
hold  the  property  for  the  vendee.  In  Mitchell  v.  LeClair,  supra  the 
defendant  had  ordered  sixty  tubs  of  butter  which  plaintiff  set  apart 
for  him,  but  he  subsequently  refused  to  take  it.  Referring  to  these 
facts,  the  court  said  that  if  the  vendee  in  such  case  refused  to  take  the 
goods  and  pay  for  them,  the  vendor  might  recover  the  price,  if  he 
kept  the  goods  in  readiness  for  delivery  to  the  purchaser.  It  some- 
times happens,  as  in  the  instance  of  a  suit  of  clothes  made  for  a  person, 
or  a  portrait  painted  for  him,  that  the  thing  sold  is  obviously  worthless 
to  any  one  else  and  then,  we  apprehend,  the  seller  could  recover  the 
full  price  on  the  purchaser's  refusal  to  accept  without  regard  to  wheth- 
er the  contract  was  still  executory,  provided  it  had  been  performed 
to  the  extent  of  having  the  subject-matter  of  it  ready  for  delivery, 
(Allen  V.  Jarvis,  20  Conn.  38.)  This  is  not  such  a  case;  for  it  is 
apparent  that  the  unaccepted  ranges  had  a  value  either  as  scrap  iron 
or  as  ranges ;  and,  indeed  this  proposition  is  conceded.  We  have  said 
that  plaintiff  did  not  elect  either  to  hold  the  ranges  as  defendant's 
property  to  be  delivered  on  demand,  or  sell  them  for  defendant  as  its 
agent.  On  the  contrary  plaintiff  treated  the  ranges  as  its  own  and 
proceeded  to  sell  them  from  time  to  time.  In  view  of  this  fact,  de- 
fendant is  entitled  to  a  deduction  of  the  value  of  the  ranges  from  the 
agreed  price.     ,     ,     . 


MOSvS  &  RALEY  v.  WREN, 

(Supreme  Court  of  Texas,  1909,  102  Texas  567,  113  S.  W.  739,  130  S.  W,  847.) 

Gaines,  C.  J.  ,  ,  ,  The  appellants  were  employed  as  real  estate 
brokers  to  make  sale  of  certain  land  belonging  to  appellee,  and  having 
effected,  as  they  claimed,  a  sale  to  one  Clark,  brought  suit  for  their 
commission.  In  the  contract  for  the  conveyance  of  the  land,  after 
specifying  the  price,  consideration,  etc.,  the  following  stipulation  was 
inserted:  "And  it  is  further  mutually  agreed  in  case  purchaser  fails 
to  comply  with  the  terms  hereof  relating  to  the  payment  and  securing 
of  the  purchase  price  as  above  mentioned  and  by  the  liuic  herein 
designated,  purchaser  shall  forfeit  the  amount  paid  hereon  to  seller  and 
1  Eq.— 3 


34  SPECIFIC    PERFOE.MANCE    OF  CONTEACTS  (Part    ] 

the  same  shall  be  paid  to  seller  by  said  trustees  and  accepted  by  said 
seller  as  and  for  liquidated  damages  for  such  injury  and  damage  as 
the  seller  may  suiter  by  reason  of  the  nonperformance  of  this  contract 
on  the  part  of  the  purchaser." 

The  question  certified  for  our  determination  is,  whether  upon  this 
contract  a  sale  was  effected  so  as  to  entitle  the  appellants  to  their 
commission. 

We  have  numerous  decisions  holding  that,  although  there  is  a 
stipulation  in  the  contract  of  this  character,  payment  of  a  fixed  sum 
of  money  as  liquidated  damages  does  not  afi^ect  the  contract  for  sale 
of  the  land  but  that  the  seller  can  enforce  specific  performance.  (Hem- 
ming V.  Zimmerschitte,  4  Texas,  159;  Williams  v.  Talbot,  16  Texas,  1 ; 
Vardeman  v.  Lawson,  17  Texas,  11;  Bullion  v.  Campbell,  27  Texas, 
653;  Gregory  v.  Hughes,  20  Texas,  345). 

It  seems  to  us  that  these  decisions  are  decisive  of  the  case.  If  the 
vendor  of  the  land  can  enforce  a  specific  performance  of  the  contract 
to  pay  for  it,  then  the  broker  has  effected  a  sale,  valid  in  law,  and  is 
entitled  to  his  compensation.  W^e  have  also  examined  the  authorities 
cited  in  the  certificate  upon  the  same  proposition  and  find  it  is  amply 
supported  by  them.  (Lyman  v.  Gedney,  29  N.  E.,  282;  Hull  v.  Sturdi- 
vant,  46  Me.,  34;  Hooker  v.  Pynchon,  74  Mass.  (8  Gray),  550;  Ewins 
v.  Gordon,  49  N.  H.  444;  O'Connor  v.  Tyrrell,  (N.  J.  Eq.),  30  Atl., 
1061;  Palmer  v.  Bowen,  34  N.  E.,  291,  affirming  s.  c.  in  18  N.  Y. 
Supp.,  638;  Kettering  v.  Eastlack,  107  N.  W.,  177). 

We  therefore  answer  the  question  submitted  in  the  affirmative  and 
say  that  the  contract  is  such  that  appellee  is  entitled  to  have  it 
specifically  enforced,  and  that  therefore  the  appellants  are  entitled  to 
their  commission  for  making  the  sale. 

Opinion  filed  December  2,  1908. 


On  Rehearing. 

Gaines,  C.  J.  Upon  consideration  of  the  motion  for  a  rehearing 
in  this  case  we  are  of  opinion  that  we  erred  in  disposing  originally 
of  the  question. 

Referring  to  the  stipulation  quoted  at  the  end  of  the  statement  of 
the  case  it  is  to  be  noted  that  it  provides  that  the  $1,000  put  up  as 


Ch.    2)  IN   GENERAL.  35 

a  forfeit  "shall  be  paid  to  the  seller  by  said  trustees  and  accepted  by 
said  seller  as  liquidated  damages  for  such  injury  and  damage  as  the 
seller  may  suffer  by  reason  of  the  non-performance  of  this  contract 
on  part  of  the  purchaser."  Now,  it  occurs  to  us  that  if  nothing  had 
been  said  as  to  the  acceptance  of  the  $1,000  by  the  seller,  our  original 
opinion  would  have  been  correct.  But  if  the  seller  is  bound  to  accept 
the  sum  for  such  damages  as  may  be  suffered  by  reason  of  the  non- 
performance of  the  contract  on  part  of  the  purchaser,  can  he  sue  the 
proposed  purchaser  for  specific  performance  of  the  contract?  The 
contract  evidently  was  that  the  proposed  purchaser  should  have  until 
a  future  day  to  pay  the  price  and  accept  a  conveyance,  yet  should  he 
decline  for  any  reason  to  pay  the  price  and  to  accept  the  land,  he  may 
pay  the  liquidated  damages  and  be  absolved   from   further   suit. 

Moss  &  Raley  entered  into  a  contract  with  Clark  to  sell  him  certain 
lands  and  stipulated  that  in  case  he  failed  to  buy,  he  should  forfeit 
$1,000  which  had  been  put  up  to  enforce  the  bargain.  He  chose  to 
forfeit  the  $1,000  which  absolved  him  from  further  obligation. 

Before  Moss  &  Raley  were  entitled  to  their  commission  they  should 
have  procured  a  purchaser  who  was  willing  to  enter  into  a  contract 
to  purchase  the  land  absolutely. 

For  this  reason  we  answer  the  question  in  the  negative. 

Opinion  filed  June  23,  1909. 


DILLS  V.  DOEBLER. 

(Supreme  Court  of  Errors  of  Connecticut,  1892,  C2  Conn.  366,  26  Atl.  398.) 

Andrews,  C.  J.  The  plaintiff  and  defendant  in  June,  1890,  entered 
into  a  contract  for  the  lease  of  certain  rooms  in  the  city  of  Hartford 
and  the  practicing  of  dentistry  therein,  the  eighth  paragraph  of  which 
contained  these  clauses  : — 

"And  the  said  Doebler,  in  consideration  of  the  premises,  does 
further  covenant  and  agree  to  and  with  the  said  Dills,  that  he,  the 
said  Doebler,  will  not,  at  any  time  within  ten  years  after  the  termina- 
tion of  this  contract,  engage  in  or  carry  on  directly  or  indirectly  within 
the  limits  of  fifteen  miles  of  said  Hartford,  tlie  business  or  profession 
of  a  dentist,  or  any  branch  of  the  same,  either  as  principal,  employee, 


36  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    ] 

agent  or  partner,  or  in  any  manner  or  form  or  in  any  capacity  what- 
ever : — Provided,  and  it  is  hereby  understood  and  agreed  by  and  be- 
tween the  parties  hereto,  that  in  the  event  of  the  said  Dih's  faihire 
to  retain  said  rooms  for  said  practice  by  reason  of  the  said  Dills- 
Hinckley  lease,  then  and  in  that  event  this  section  of  the  contract 
becomes  void  by  said  Doebler  paying  to  said  Dills  five  hundred  dollars, 
and  giving  bond  in  like  sum  that  he,  the  said  Doebler,  will  not  use 
the  term  'Associate  Dentists'  in  connection  with  announcing  or  ad- 
vertising a  future  practice  of  dentistry  in  said  Hartford.  .  .  . 
And  it  is  further  mutually  understood  and  agreed  by  and  between  the 
parties  hereto  that  the  said  Doebler  may  be  at  liberty  to  practice 
dentistry  in  said  Hartford  at  any  time  after  the  termination  of  this 
contract,  by  the  paying  to  said  Dills  of  one  thousand  dollars,  and 
giving  such  bond  as  is  hereinbefore  alluded  to  in  reference  to  the  term 
'Associate  Dentists.' ".     .     . 

An  examination  of  the  agreement  between  these  parties  makes  it 
evident  that  they  were  contracting  upon  the  theory  that  the  defendant 
was  to  resume  the  practice  of  dentistry  in  Hartford  upon  his  own 
accord  when  the  contract  should  be  terminated.  He  was  of  course  to 
pay  for  the  right  so  to  resume.  The  section  quoted  in  its  earlier  part 
spoke  of  a  termination  of  the  contract  by  reason  of  the  failure  of 
the  plaintiff's  title  to  the  rooms.  In  such  event  it  is  entirely  certain 
that  the  defendant  would  have  the  right  to  engage  in  dentistry  upon 
paying  four  hundred  dollars,  for  it  is  provided  that  the  section  was 
then  to  become  void.  The  latter  part  of  the  section  speaks  of  the 
termination  of  the  contract  from  any  other  cause.  Then  the  defendant 
is  required  to  pay  one  thousand  dollars  in  order  "to  be  at  liberty  to 
practice  dentistry  in  said  Hartford."  In  the  one  case  the  defendant 
was  to  pay  four  hundred  dollars,  in  the  other  one  thousand.  But  in 
respect  to  his  liberty  to  resume  business  on  his  own  account  there  is 
no  distinction.  In  either  case  the  contract  stipulates  for  damages 
and  not  for  the  removal  of  competition.  The  contract  presents  an 
alternative.  It  virtually  says  to  the  defendant — "If  you  enter  into 
the  business  of  dentistry  in  Hartford  after  the  termination  of  this 
agreement,  you  must  pay  to  the  plaintiff  the  damages  named." 

The  language  used  indicates  this  thought;  and  there  is  nothing 
in  the  relation  of  the  parties,  or  in  the  business  of  dentistry,  nor  in 
the   surrounding   circumstances,   to    indicate   otherwise.      Presumably 


oil.    2)  IN    GENERAL.  37 

there  are  many  dentists  in  the  city  of  Hartford.  Lessening  their  num- 
ber by  one  could  not  benefit  the  plaintitY  in  any  perceptible  degree. 
Nor  would  the  defendant  by  practicing  there  be  likely  to  injure  the 
plaintiff  at  all  seriously.  The  plaintiff  having  contracted  to  take 
damages  must  seek  his  remedy  in  a  court  of  law. 


FOSTER  V.  KIMMONS. 

(Supreme  Court  of  Alissouri,  1874,  5-1  Mo.  488,  2()  Am.  Dec.  6(51,  663  note.) 

VoRiES,  J.  .  .  .  In  the  case  under  consideration,  the  evidence 
shows,  that  the  contract,  which  is  asked  to  be  specifically  performed, 
was  a  gift  of  a  piece  of  land,  upon  which  is  situated  a  celebrated  spring ; 
that  the  defendant,  or  donor,  had  a  larger  tract  of  land  at  and  con- 
stituting the  spring  tract;  it,  is  not  pretended  that  the  whole  tract  of 
land  was  included  in  the  gift ;  no  mention  is  made  in  the  evidence  of 
the  quantity  of  the  land  given,  either  by  referring  to  its  legal  sub- 
divisions, or  otherwise.  The  only  evidence,  tending  in  that  direction, 
is,  that  the  defendant,  while  riding  over  the  land,  had  pointed  out  to 
the  witness  a  tree  at  a  considerable  distance,  which  he  supposed  was 
near  where  one  corner  of  the  land  would  be,  and  he  had  also  stated  the 
course  which  he  supposed  one  line  of  the  land  would  run.  This  is  the 
only  description  given,  while  the  evidence  clearly  shows,  that  the  son, 
to  whom  the  land  is  charged  to  have  been  given,  did  not  claim  the 
whole  of  the  spring  tract.  It  is  impossible,  therefore,  to  ascertain  from 
any  contract  or  gift  proven  what  part,  or  how  much,  of  the  tract  was 
given  or  intended  to  be  given;  the  only  evidence  being,  that  one  line 
of  the  land  was  supposed  to  be  near  a  certain  tree,  without  anything 
to  indicate  the  number  of  acres  given,  or  where  the  other  lines  were, 
or  were  supposed  to  be.  It  must  at  once  be  perceived,  that  it  would 
be  impossible  for  a  court  of  equity  to  specifically  perform  the  contract, 
and  know  the  very  contract  made,  or  intended  by  the  parties,  was 
being  performed  as  to  the  quantity  and  boundaries  of  the  land.  The 
court  would  have  to  first  make  the  contract,  and  then  perform  it.  This 
a  court  of  equity  can  never  do.  It  follows,  that  the  plaintiffs'  petition 
was,  for  this  reason,  properly  dismis.sed. 


38  SPECIFIC   PERFORMANCE    OF  CONTRACTS  (Part    1 


PADDOCK  V.  DAVENPORT. 

(Supreme  Court  of  North  Carolina,  1890,  107  N.  C.  710,  13  S.   E.  464.) 

Shepherd^  J.  Two  causes  of  action  are  set  out  in  the  complaint, — 
one  for  damages  for  breach  of  the  contract,  and  the  other  for  its 
specific  performance.  The  court  held,  upon  demurrer,  that  neither  of 
the  said  causes  of  action  could  be  maintained.     .     .     , 

The  second  cause  of  action  is  for  specific  performance,  both  against 
Davenport,  who  executed  the  contract,  and  Thrash,  who  purchased 
of  him  with  notice  of  the  claim  of  the  plaintiff.  The  true  principle 
upon  which  specific  performance  is  decreed  does  not  rest  simply  upon 
a  mere  arbitrary  distinction  as  to  different  species  of  property,  but  it 
is  founded  upon  the  inadequacy  of  the  legal  remedy  by  way  of  pecu- 
niary damages.  This  principle  is  acted  upon  where  there  is  a  peculiar 
value  attached  to  the  subject  of  the  contract  which  is  not  compensable 
in  damages.  The  law  assumes  land  to  be  of  this  character  "simply 
because,"  says  Pearson,  J.,  in  Kitchen  v.  Plerring.  7  Ired.  Eq.  191, 
"it  is  land, — a  favorite  and  favored  subject  in  England,  and  every 
country  of  Anglo-Saxon  origin."  The  law  also  attaches  a  peculiar 
value  to  ancient  family  pictures,  title-deeds,  valuable  paintings,  articles 
of  unusual  beauty,  rarity,  and  distinction,  such  as  objects  of  vertu. 
A  horn  which,  time  out  of  mind,  had  gone  along  with  an  estate,  and 
an  old  silver  patera,  bearing  a  Greek  inscription  and  dedication  to 
Hercules,  were  held  to  be  proper  subjects  of  specific  performance. 
These,  said  Lord  Eldon,  turned  upon  the  pretium  affectionis,  which 
could  not  be  estimated  in  damages.  So,  for  a  faithful  family  slave, 
endeared  by  a  long  course  of  service  or  early  association.  Chief  Justice 
Taylor  remarked  that  "no  damages  can  compensate,  for  there  is  no 
standard  by  which  the  price  of  affection  can  be  adjusted,  and  no  scale 
to  graduate  the  feelings  of  the  heart."  Williams  v.  Howard,  3  Murph. 
80.  The  principle  is  also  applied  where  the  damages  at  law  are  so 
uncertain  and  unascertainable,  owing  to  the  nature  of  the  property 
or  the  circumstances  of  the  case,  that  a  specific  performance  is  in- 
dispensable to  justice.  Such  was  formerly  held  as  to  the  shares  in 
a  railway  company,  which  differ,  says  the  court  in  Ashe  v.  Johnson, 
2  Jones,  Eq.  149,  from  the  funded  debt  of  the  government,  in  not 
always  being  in  the  market  and  having  a  specific  value ;  also  a  patent, 


Ob.    2)  AFFIRMATIVE    CONTRACTS  39 

(Corbin  v.  Tracy.  34  Conn.  325)  ;  contract  to  insure    (Carpenter  v. 
Insurance  Co.,  4  Sandf.  Ch.  408)  ;  and  Hke  cases.     Tbe  general  prin- 
ciple everywhere  recognized,  however,  is  that,  except  in  cases  falHng 
within  the  foregoing  principles  a  court  of  equity  will  not  decree  the 
specific  performance  of  contracts  for  personal  property;   "for,"   re- 
marks Pearson,  J.,  in  Kitchen  v.  Herring,  supra,  "if,  with  money,  an 
article  of  tbe  same  description  can  be  bought,     .     .     .     the  remedy 
at  law  is  adequate."    See,  also.  Pom.  Spec.  Perf.  14.     Applying  these 
principles  to  the  facts  alleged  in  the  complaint,  it  must   follow,  we 
think,  that  this  is  not   a  case   which  calls   for   the  excercise  of   the 
equitable  power  of  the  court.     The  trees  were  purchased  with  a  view 
to  their  servance  from  the  soil,  and  thus  being  converted  into  personal 
property.     It  is  not  shown  that  they  have  any  peculiar  value  to  the 
plaintifif,  nor  does  there  appear  any  circumstances  from  which  it  may 
be  inferred  that  the  breach  of  the  contract  may  not  be  readily  com- 
pensated for  in  damages.     Nehher  is  it  shown  that  other  trees  may 
not  be  purchased,  but  it  is  simply  alleged  that  they  are  scarce  at  the 
contract  price.    The  simple  fact  that  they  are  near  a  water-course  does 
not  alter  the  case,  for  the  conveniences  of  transportation  are  elements 
which  may  be  considered  in  the  estimation  of  the  damages.     Neither 
is  the  circumstance  that  the  plaintiff  purchased  "a  few  trees  of  Hke 
kind,"  in  the  vicinity,  sufficient  to  warrant  the  equitable  intervention 
of  the  court.    We  can  very  easily  conceive  of  cases  in  which  contracts 
of  this  nature  may  be  specifically  enforced,  but  we  can  see  nothing  in 
this  complaint  which  calls  for  such  extraordinary  relief.     The  ruling 
of  the  court  as  to  this  branch  of  the  case  is  sustained.     .     .     . 


SECTION  II.— AFFIRMATIVE  CONTRACTS 


GARTRELL  v.  STAFFORD. 

(Supreme  Court  of  Nebraska,   1883,    12   Nebr.   545.) 

MaxwRi.l,  J.     This  is  an  action  to  enforce  the  specific  performance 
of  an  alleged  contract  for  the  conveyance  of  real  estate.     .     .     . 


40  SPECIFIC   PERFORMANCE    OF  CONTRACTS  (Part    1 

The  second  objection  of  the  appellant  is  that  the  plaintiff  has  an 
adequate  remedy  at  law  in  an  action  for  damages.  The  rule  contended 
for  by  the  appellant  undoubtedly  applies  to  contracts  for  the  sale  of 
personal  property,  the  reason  being  that  damages  in  such  cases  are 
readily  calculated  on  the  market  price  of  property  such  as  wheat, 
corn,  wool,  etc.,  like  quantities  of  the  same  grade  being  of  equal  value, 
and  thus  afford  as  complete  a  remedy  to  the  purchaser  as  the  delivery 
of  the  property.  Adderley  v.  Dixon,  1  Sim.  &  Stu.  607.  But  the  rule 
is  a  qualified  one  and  is  limited  to  cases  where  compensation  in  dam- 
ages furnishes  a  complete  and  satisfactory  remedy.  Story's  Eq.,  S. 
718,  and  cases  cited  in  note  3.  The  jurisdiction  of  courts  of  equity 
to  decree  specific  performance  of  contracts  for  the  sale  of  real  estate 
is  not  limited,  as  in  cases  respecting  chattels,  to  special  circumstances, 
but  is  universally  maintained,  the  reason  being  that  a  purchaser  of  a 
particular  piece  of  land  may  reasonably  be  supposed  to  have  consider- 
ed the  locality,  soil,  easements,  or  accommodations  of  the  land,  gen- 
erally, which  may  give  a  peculiar  or  special  value  to  the  land  to  him, 
that  could  not  be  replaced  by  other  land  of  the  same  value,  but  not 
having  the  same  local  conveniences  or  accommodations.  Adderley 
V.  Dixon,  1  Sim.  &  Stu.,  607,  Story's  Eq.,  sec.  746.  Willard's  Eq., 
279.  An  action  for  damages  would  not.  therefore,  afford  adequate 
relief. 


LOSEE  V.  MOREY. 

(Supreme  Court  of  New  York,   1865,  57  Barb.  561.) 

BoCKES,  J.  ...  As  a  general  rule,  the  specific  performance  of 
contracts  rests  in  the  discretion  of  the  court.  It  is  not.  however,  an  in- 
dividual or  arbitrary  discretion,  but  a  judicial  discretion  which  con- 
forms itself  to  general  rules  and  settled  principles.  The  right  to  have 
specific  performance  is  a  positive  right,  neither  to  be  exercised  or 
withheld  capricious^,  or  simply  at  will.  When  all  is  fair,  and  the 
parties  deal  on  equal  terms,  it  is  a  universal  rule,  in  equity,  to  en- 
force contracts  for  the  sale  of  lands  specifically,  at  the  demand  of 
either  the  vendor  or  vendee;  and  in  such  case  it  is  as  much  the  duty 
of  the  court  to  decree  specific  performance  of  the  contract  as  it  >3 


Ch.    2)  AFFIRMATIVE    CONTRACTS  41 

to  give  damages  for  its  breach.  (Willard's  Eq.  280.  Story's  Eq. 
No.  746,  751,  9  Vesey,  608.  12  id.  395,  400.  3  Cowen,  445.  6  Bosw.  245.) 
In  the  last  case  cited  the  court  remarks  that  the  discretion  to  be 
exercised  in  these  cases,  "is  governed,  for  the  most  part,  by  settled 
rules ;  and  where  a  plaintiflf  is  seeking  a  reHef  to  which  bv  such  rules 
he  is  clearly  entitled,  and  no  substantial  defense  to  his  claim  is 
established,  the  relief  may  not  be  capriciously  denied."  It  follows, 
therefore,  that  if  a  contract  for  the  sale  and  purchase  of  lands  has 
been  fairly  obtained,  without  misapprehension,  surprise,  mistake  or 
the  exercise  of  any  undue  advantage,  and  it  be  not  unconscionable 
in  its  terms,  the  right  of  the  parties  to  its  specific  performance  is  a 
settled  and  positive  right,  which  the  court  is  bound  to  maintain  and 
enforce.  It  is  insisted,  in  the  next  place,  that  the  case  is  not  of 
equitable  cognizance,  because  the  plaintiff  has,  as  is  urged,  a  perfect 
remedy  at  law,  on  the  contract,  for  damages.  This  objection  is  not 
available  in  a  case  like  this,  where  the  contract  is  for  the  purchase  and 
sale  of  lands.  In  such  case  the  vendee  is  not  deemed  to  have  a  per- 
fect remedy  in  an  action  at  law  for  damages.  He  is  entitled  to  the 
land,  according  to  the  terms  of  the  purchase.  A  compensation  in 
damages  will  not  afiford  adequate  relief;  "for  the  peculiar  locality, 
soil,  vicinage,  advantage  of  markets  and  the  like  conveniences  of  an 
estate  contracted  for,  cannot  be  replaced  by  other  land  of  equal  value." 


LEACH  &  WIFE  v.  FOBES. 

(Supreme  Court  of  Massachusetts,  1858,  11  Gray   (Mass.)   50G.) 

BiGEi-OW,  J.  .  .  .  Nor  have  we  any  doubt  as  to  the  right  of  the 
plaintififs  to  ask  for  the  enforcement  of  this  contract  by  a  decree  in 
chancery.  The  remedy  at  law  is  not  adequate  and  complete.  The 
agreement  is  not  one  for  the  transfer  of  shares  in  a  corporation  merely. 
It  is  a  contract  also  for  the  conveyance  of  a  certain  right  or  interest 
in  real  estate,  which  is  an  appropriate  subject  for  specific  relief  in 
equity.  The  court  has  jurisdiction  to  decree  that  the  land  which  is 
the  subject  of  tlie  agreement  shall  be  conveyed  to  the  plaintiffs;  and, 
as  it  will  give  relief  for  this  jjarl  of  the  contract,  it  will  also  entertain 
jurisdiction  (jf  the  whole  agreeincnl,  and  enforce  the  other  stipulations 


42  SPECIFIC    PERFOEMANCE    OF  CONTEACTS  (Part    1 

respecting  the  transfer  of  shares  in  the  incorporated  companies  named 
in  the  bill,  instead  of  turning  the  party  over  to  seek  his  remedy  therefor 
by  an  action  at  law.  The  more  recent  authorities  are  quite  decisive 
as  to  the  authority  of  a  court  of  chancery  to  decree  the  specific  per- 
formance of  a  contract  for  the  transfer  of  shares  in  joint  stock  com- 
panies or  corporations,  in  cases  in  which  it  appears  that  the  capital 
stock  is  fixed  at  a  certain  amount  and  the  number  of  shares  is  limited. 
Duncuft  V.  Albrecht.  12  v'^im.  189,  Shaw  v.  Fisher,  2  De  Gex  &  Sm. 
11,  and  5  De  Gex,  Macn.  &  Cord.  596,  Cheale  v.  Kenward,  3  De  Gex 
&  Jon.  27.  But  without  deciding  whether  a  suit  in  equity  can  be  sup- 
ported for  sole  purpose  of  enforcing  a  contract  for  the  sale  of  shares 
in  a  corporation,  we  are  of  opinion  that  such  an  agreement  may  be 
enforced  in  equity  when  it  forms  part  of  a  contract  for  the  sale  and 
transfer  of  real  estate,  and  the  suit  is  brought  for  the  conveyance  of 
the  land  as  well  as  for  the  transfer  of  the  shares.     Decree  accordingly 


McNAMARA  et  al.  v.  HOME  LAND  &  CATTLE  CO.  et  al. 

(Circuit   Court  of   Montana  District,   1900,   105   Fed.   202.) 

KnowlES,  D.  J.  .  .  .  The  case  was  brought  to  compel  the  specific 
performance  of  a  contract  for  the  sale  and  delivery  of  certain  personal 
property,  described  in  the  bill  herein,  and  situated  within  the  state 
of  Montana.  .  .  .  It  is  evident  that  this  construction  of  the  con- 
tract contended  for  on  the  part  of  the  said  cattle  company  would  force 
the  complainants  to  seek  redress  for  said  cattle  company's  breach  of 
this  contract  in  the  state  of  Missouri,  and  that  the  complainants 
could  not  have  done  so  with  any  assurance  of  obtaining  complete 
redress  in  Montana.  It  is  an  important  consideration  in  this  case 
as  to  whether  sufficient  equities  have  been  presented  to  justify  this 
court  in  awarding  specific  performance  of  this  contract.  The  master 
has  found  that  the  cattle  company  is  solvent.  He  has  found,  however, 
that  the  property  of  said  company  chiefly  consists  of  an  indebtedness 
due  it  from  the  St.  Ivouis  Stamping  Company,  a  Missouri  corporation 
and  doing  business  in  that  state.  What  the  nature  of  this  indebtedness 
is,  and  how  it  is  evidenced  does  not  appear.  When  such  indebtedness 
becomes  due  is  also  a  matter  not  in  evidence,  or  determined  by  the 


Ch.    2)  ArFIRMATI\TE    CONTRACTS  43^ 

findings  of  the  master.  A  party  should  not,  under  the  circumstances 
presented  by  this  case,  be  compelled  to  seek  a  foreign  jurisdiction  to 
collect  damages  for  the  breach  of  a  contract  when  he  has  in  his  own 
hands  the  means  of  remunerating  himself  therefor.  Johnson  v. 
Brooks,  93  N.  Y.  343.  In  the  case  of  Clark  v.  Flint,  33  Am.  Dec.  733, 
it  is  held  that,  where  the  remedy  at  law  would  be  against  a  person 
actually  insolvent,  such  legal  remedy  would  not  be  adequate,  and 
would  be  a  ground  for  equitable  jurisdiction.  In  22  Am.  &  Eng.  Enc. 
Law,  992,  it  is  stated  that  the  insolvency  of  a  defendant  is  a  ground 
for  equitable  relief,  where  the  specific  performance  of  a  contract  for 
the  sale  of  chattels  is  presented.  As  far  as  the  defendant  the  Home 
Land  &  Cattle  Company  is  concerned,  I  think  it  may  be  treated  as  if 
insolvent  in  Montana.  It  had  not  the  means  wherewith  to  liquidate 
complainants'  claims  on  account  of  the  deficiency  of  the  cattle  above 
mentioned,  if  complainants  paid  to  the  defendant  bank  the  amount 
due  for  the  last  delivery  of  cattle  made  to  them.  The  cattle  gathered 
by  the  defendant  the  Home  Land  &  Cattle  Company  in  the  year  1898 
were  upon  the  range,  and  scattered,  and  it  would  seem  unjust  to  re- 
quire a  creditor  to  hunt  them  up  in  order  to  render  them  subject  to 
his  demand.  With  this  view  of  the  law  and  the  facts  presented  in 
this  case,  I  have  reached  the  conclusion  that  sufficient  equities  are 
presented  to  entitle  complainants  to  the  relief  prayed  for  in  their  bill. 
It  is  therefore  ordered  that  complainants  have  a  decree  for  the  specific 
performance  of  this  contract  as  to  the  cattle  and  horses  described  in 
the  bill. 


CORE  IN  V.  TRACY. 
(Supreme  Court  of  Connecticut,  1867,  34  Conn.  325.) 

Bill  in  equity,  brought  by  the  petitioners,  a  joint  stock  corporation, 
to  the  superior  court  for  Hartford  county,  to  compel  the  specific  per- 
formance of  a  contract  to  assign  a  patent  right.  The  superior  court 
(Loomis,  J.)  passed  a  decree  in  favor  of  the  petitioners,  and  the  re- 
spondents filed  a  motion  for  a  new  trial  and  a  motion  in  error.  The 
case  is  sufficiently  stated  in  the  opinion. 

Carpenter^  J.  .  .  .  The  ground  of  the  jurisdiction  of  a  court 
of  equity  in  this  class  of  cases,  is,  thai  a  ccnul  of  law  is  inadequate 


44  SPECIFIC   PERFOKMAlSrCE   OF  CONTEACTS  (Part    1 

to  decree  a  specific  performance,  and  can  relieve  the  injured  party  only 
by  a  compensation  in  damages,  which,  in  many  cases,  would  fall  far 
short  of  the  redress  which  his  situation  might  require.  Whenever, 
therefore,  the  party  wants  the  thing  in  specie,  and  he  cannot  other- 
wise be  fully  compensated,  courts  of  equity  will  grant  him  a  specific 
performance.  They  will  decree  the  specific  performance  of  a  con- 
tract for  the  sale  of  lands,  not  because  of  the  peculiar  nature  of  land, 
but  because  a  party  cannot  be  adequately  compensated  in  damages. 
So  in  respect  to  personal  estate ;  the  general  rule  that  courts  of  equity 
will  not  entertain  jurisdiction  for  a  specific  performance  of  agreements 
respecting  goods,  chattels,  stocks,  choses  in  action,  and  other  things 
of  a  merely  personal  nature,  is  limited  to  cases  where  a  compen- 
sation in  damages  furnishes  a  complete  and  satisfactory  remedy.  2 
Story's  Eq.  Jur.  Nos.  717.  718. 

The  jurisdiction,  therefore,  of  a  court  of  equity  does  not  proceed 
upon  any  distinction  between  real  estate  and  personal  estate,  but  upon 
the  ground  that  damages  at  law  may  not  in  the  particular  case, 
afford  a  complete  remedy.  1  Story's  Eq.  Jur.,  §§  716,  717,  718  and 
cases  there  cited ;  Clark  v.  Flint,  22  Pick.,  231.  When  the  remedy  at  law 
is  not  full  and  complete,  and  when  the  effect  of  the  breach  cannot 
be  known  with  any  exactness,  either  because  the  effect  will  show 
itself  only  after  a  long  time,  or  for  any  other  reason,  courts  of  equity 
will  enforce  contracts  in  relation  to  personalty.  3  Parsons  on  Con- 
tracts  (5th  ed.)   373. 

An  application  of  these  principles  to  the  case  before  us  relieves 
it  of  all  difficulty.  The  contract  relates  to  a  patent  right,  the  value 
of  which  has  not  yet  been  tested  by  actual  use.  All  the  data  by  which 
its  value  can  be  estimated  are  yet  future  and  contingent.  Experience 
may  prove  it  to  be  worthless ;  another  and  better  invention  may  super- 
sede it ;  or  it  may  itself  be  an  infringement  of  some  patent  already 
existing.  On  the  other  hand  it  may  be  so  simple  in  its  principle  and 
construction  as  to  defy  all  competition,  and  give  its  owner  a  practical 
monopoly  of  all  branches  of  business  to  which  it  is  applicable.  In 
any  event  its  value  cannot  be  known  with  any  degree  of  exactness 
until  after  the  lapse  of  time ;  and  even  then  it  is  doubtful  whether 
it  can  be  ascertained  with  sufficient  accuracy  to  do  substantial  justice 
between  the  parties  by  a  compensation  in  damages.  On  the  whole 
we  are  satisfied  that  justice  can  only  be  done,  in  a  case  like  this,  by 
a  specific  performance  of  the  contract. 


Ch.    2)  AFPIKMATIVE    CONTRACTS  45 


LEWIS   V.   LORD   LECHMERE. 

(English   Court  of   Chancery,   1721,   12   Modern   Reports,   504.) 

This  was  a  bill  brought  by  the  plaintitT  for  a  specific  performance 
of  articles,  bearing  date  the  thirtieth  day  of  August  1720,  whereby 
Lord  Lechmere  had  covenanted  to  purchase  such  an  estate  at  forty 
years  purchase;  provided  the  plaintiff  did,  on  or  before  the  tenth  day 
of  November  following,  lay  spch  an  abstract  of  the  title  before  Lord 
Lechmere's  Counsel,  as  they  should  approve.     .     .     . 

It  was  said  by  the  counsel  for  the  defendant,  that  though  in  case 
of  articles  entered  into  for  the  purchase  of  lands,  the  vendee  may 
undoubtedly  exhibit  his  bill  in  equity  for  the  specific  performance  of 
these  articles ;  yet  it  might  admit  of  a  doubt,  whether  the  vendor 
might  do  the  same.  As  to  the  vendee,  though  he  has  an  action  at  law 
upon  the  articles,  yet  that  sounds  only  in  damages ;  and  therefore  he 
may  come  into  equity  for  the  land,  which  on  several  accounts  may 
possibly  be  more  desirable  to  him  than  any  pecuniary  compensation. 
But  for  the  vendor,  he  only  desires  to  have  the  money;  and  that, 
whether  it  be  recovered  at  law  in  damages,  or  in  equity,  is  but  money 
still.  If  it  be  said,  that  at  law  the  jury  may  at  their  own  liberty  and 
discretion,  give  him  what  damages  they  upon  all  the  circumstances 
of  the  case  think  reasonable;  whereas  upon  a  bill  in  equity,  your  lord- 
ship has  no  power  to  vary  from  the  sum  contracted  for  in  the  articles, 
be  the  circumstances  of  the  case  what  they  will;  this  seems  to  be  a 
very  odd  reason  for  coming  into  a  court  of  equity,  and  the  reverse  of 
what  generally  intitles  people  to  relief  in  equity. 

But  to  this  it  was  answered,  that  upon  mutual  articles  there  ought 
to  be  mutual  remedies:  that  if  the  vendee  had  a  remedy  both  in  law 
and  equity,  the  vendor  would  not  be  upon  a  par  with  him,  unless  he 
had  so  too ;  that  the  remedy  the  vendor  had  at  law,  was  not  a  remedy 
adequate  to  what  he  had  in  this  court;  for  at  law  they  only  could  give 
him  the  difference  in  damages,  whereas  he  might  for  particular  reasons 
stand  in  need  of  the  whole  sum.     .     .     . 


46  SPECIFIC   PEEFOEMANCE   OF  CONTEAOTS  (Part    1 

GOTTSCHALK  v.  STEIN  &  LEOPOLD. 

(Court  of  Appeals  of  Alaryland,  1888,  69  Md.  51.) 

Robinson,  J.  .  .  .  Now  in  this  case;  the  appellant  agreed  to  sell 
to  the  appellees  the  three  promissory  notes  of  Weiller  &  Son,  and  the 
appellees  agreed  to  buy  these  notes  for  a  specific  purpose,  which  was 
known  to  the  appellant.  An  action  at  law  for  a  breach  of  the  con- 
tract, would  not,  it  is  clear,  give  to  the  appellees  the  subject-matter 
of  the  contract.  And  besides,  the  damages  to  be  recovered  must  neces- 
sarily be  uncertain.  The  face  value  of  the  notes  is  seven  thousand  five 
hundred  dollars,  and  the  appellant  agreed  to  sell  and  transfer  them 
to  the  appellees,  upon  the  payment  of  three  thousand  dollars.  If  the 
firm  of  Weiller  &  Son  was  perfectly  solvent,  there  would  be  no  dif- 
ficulty in  determining  the  measure  of  damages.  But  the  firm,  the 
record  shows,  was  insolvent,  their  assets  being  insufficient  to  pay  their 
debts.  And  in  an  action  at  law  the  measure  of  damages  would  de- 
pend upon  the  personal  ability  of  the  members  of  the  firm  to  pay  the 
amount  due  on  the  notes,  and  this  being  uncertain,  the  damages  to  be 
recovered  must  also  be  uncertain.  The  legal  remedy  under  such  cir- 
cumstances would  fall  short  of  that  redress  to  which  the  appellees  are 
justly  entitled,  and  is  not,  therefore,  as  beneficial  to  them  as  the  spe- 
cific performance  of  the  contract. 

There  is  no  distinction,  it  seems  to  us,  between  this  case  and  Wright 
and  others  v.  Bell,  5  Price,  325.  There  the  assignees  in  bankruptcy, 
agreed  to  sell  a  debt  of  £550  due  the  bankrupt  for  £500,  and  the 
defendant  having  refused  to  pay  the  £500,  a  bill  was  filed  for  the 
specific  performance  of  the  contract,  and  it  was  argued  that  the  remedy 
of  the  plaintiff  was  by  an  action  at  law  for  a  breach  of  the  contract.  But 
the  Lord  Chief  Baron  held,  that  although  equity  would  not,  as  a 
general  rule,  enforce  the  performance  of  contracts,  for  the  sale  of 
chattels,  yet  a  contract  to  sell  a  specific  debt,  was  an  exception  to  the 
rule.  And  then  again  in  Adderley  v.  Dixon,  1  Sim.  &  Stu.,  607,  where 
the  plaintiff  being  entitled  to  a  dividend  in  two  bankrupt  estates, 
agreed  to  sell  the  claims  for  2s.  and  6d.  in  the  pound.  Sir.  John  Leach, 
Vice-Chancellor,  said: 

"Courts  of  equity  decree  the  specific  performance  of  contracts,  not 
upon   any    distinction   between    realty   and   personalty,    but    because 


Ch.    2)  AFFIRMATIVE    CONTRACTS  47 

damages  at  law  may  not,  in  the  particnlar  case,  afford  a  complete 
remedy.  The  present  case  being  a  contract  for  the  sale  of  the  un- 
certain dividends  which  may  become  payable  from  the  estates  of  the 
two  bankrupts,  it  appears  to  me  that,  upon  the  principle  established 
by  the  cases  of  Ball  v.  Coggs,  1  Bro.  P.  C.  140.  and  Taylor  v.  Neville, 
(cited  in  3  Atk.,  384.)  a  Court  of  equity  will  decree  specific  perform- 
ance, because  damages  at  law  cannot  accurately  represent  the  value 
of  the  future  dividends;  and  to  compel  this  purchaser  to  take  such 
damages,  would  be  to  compel  him  to  sell  these  dividends  at  a  con- 
jectural price."  So  in  this  case,  the  damages  at  law  being  uncertain 
on  account  of  the  failure  of  Weiller  &  Son,  the  appellees  are  entitled 
to  the  specific  performance  of  the  contract. 


RUTHERFORD  v.   STEWART. 

(Supreme   Court   of   Missouri,   1883,   79   Mo.   216.) 

Henry,  ].  This  is  a  proceeding  by  injunction  to  restrain  defend- 
ants from  taking  and  using  certain  brick  made  by  Helfiin  &  Sheperd- 
son  on  a  tract  of  land  owned  by  plaintiff.  Helfiin  &  Sheperdson 
agreed  to  manufacture  brick  and  pay  Rutherford  for  the  use  of  the 
ground,  and  gave  him  a  mortgage  to  secure  hini  the  price  they  were 
to  pay  and  for  certain  advancements  of  money  for  them,  upon  one 
kiln  of  bricks,  to  contain  100,000  bricks.     ... 

Afterward,  on  the  22nd  day  of  July,  1878,  said  mortgagor  exe- 
cuted to  defendant  Stewart,  a  mortgage  of  "all  the  bricks  now  being 
moulded  at  the  brick-yard,  on  the  land  of  W.  T.  Rutherford.  .  .  . 
and  all  the  bricks  that  will  be  moulded  and  turned  at  said  brick-yard, 
during  the  season  for  such  work  of  1878,  commencing  on  the  29th 
day  of  July,  1878,"  to  secure  a  promissory  note  of  that  date  for  $250, 
payable  to  said  Stewart.     .     .     . 

A  second  mortgage  was  executed  by  said  Sherperdson  &  Ilelflin  to 
Rutherford,  after  the  second  kiln  was  burned,  to  secure  a  debt  to 
Rutherford  of  $502,  advanced  by  Rutherford  and  used  by  the  firm,  to 
make  said  brick.     ... 

The  only  question  in  the  case  is  whether  the  mortgage  to  Stewart 
was  a  valid  mortgage,  the  appellant  contending  that  it  was  of  personal 


48  SPECIFIC   PEEFORMANCE   OF  CONTEACTS  (Part    1 

property  not  then  in  existence,  and,  therefore,  conveyed  nothing.  Of 
the  brick  then  made,  it  was  certainly  a  good  conveyance,  and  that,  in 
equity,  it  covered  all  the  brick  made  when  Rutherford  took  his  second 
mortgage,  we  think  equally  clear.  As  between  Stewart  and  the  mort- 
gagers, and  persons  claiming  under  the  latter,  with  actual  notice  of 
the  mortgage,  the  mortgagee's  equitable  right  to  the  property  would 
seem  to  be  unquestionable.  If  the  entire  kiln  was  completed  when 
plaintitf  took  his  second  mortgage,  he  took  it  subject  to  the  first,  and 
on  no  principle  of  equity,  can  he  be  entitled,  as  against  Stewart,  to 
any  of  the  bricks  except  such  as  were  made  after  his,  Rutherford's 
mortgage  was  executed. 

That  the  mortgage  of  Stewart  took  eiTect  upon  the  bricks  in  the 
kiln  when  it  was  executed,  is  not  questioned.  The  other  propositions 
above  stated,  were  discussed  in  Wright  v.  Bircher,  72  Mo.  179,  in  which 
this  court  approved  what  was  said  by  Mr.  Justice  Story  in  Mitchell 
V.  Winslow,  2  Story  630,  and  by  Davis,  J.  in  Morrill  v.  Noyes,  56 
Me.  458;  s.  c.  3  Am.  L.  Reg.  (N.  S.)  18.  Justice  Story  observed:  'Tt 
seems  to  me  the  clear  result  of  all  the  authorities,  that  whenever  the 
parties,  by  their  contract,  intend  to  create  a  positive  lien  or  charge, 
either  upon  real  or  personal  property,  whether  in  esse  or  not,  it  at- 
taches, in  equity,  as  a  lien  or  charge  upon  the  particular  property,  as 
soon  as  the  assignor  or  contractor  acquires  title  thereto,  against  the 
latter  and  all  persons  asserting  a  claim  thereto,  either  voluntarily  or 
with  notice,  or  in  bankruptcy."     .     .     . 


CARPENTER  v.  THE  MUTUAL  SAFETY  INSURANCE 

COMPANY. 

(New  York  Court  of  Chancery,  1846,  4  Sandf.  Ch.  436.) 

Demurrer.  The  bill  set  forth  an  agreement  for  insurance  made 
by  the  authorized  agent  of  the  defendants,  the  terms  of  which  were 
fully  stated,  the  payment  of  the  stipulated  premium  by  the  complain- 
ant to  the  defendants,  and  the  omission  of  the  latter  to  execute  a 
policy  of  insurance  conformably  to  the  agreement,  on  being  requested. 
The  bill  also  stated  the  loss  of  the  premises  insured,  and  the  com- 
plainant's consequent  right  to  recover  the  amount  agreed  to  be  insured. 


Ch.    2)  AFFIRMATmE    CONTBACTS  49 

The  prayer  was  for  a  payment  of  the  loss  and  for  general  relief.  The 
defendants  demurred  to  the  bill  for  want  of  equity.     .     .     . 

The  Vice-Chancellor.  The  circumstance  that  the  bill  seeks  per- 
formance of  a  contract  relating  to  personal  property,  is  not  of  itself 
a  valid  ground  of  demurrer.  There  are  many  instances  in  which 
equity  compels  a  specific  performance  of  such  contracts. 

The  real,  serious  objection  to  the  bill,  is  that  the  complainant  has 
an  adequate  remedy  at  law. 

I  think,  however,  that  it  is  now  the  established  doctrine,  that  the 
insured  may,  in  such  a  case,  resort  to  a  court  of  equity. 

In  Perkins  v.  The  Washington  Insurance  Company,  4  Cowen,  645, 
our  highest  court  maintained  a  suit  like  this  in  all  respects.  The  de- 
fendant there  was  a  corporate  body,  which  answers  under  its  seal  and 
makes  no  discovery. 

It  is  true  that  the  report  of  the  case  does  not  show  any  discussion 
of  the  question  of  jurisdiction  in  the  court  below,  or  that  the  point  was 
presented.  But  the  severe  litigation  of  the  cause,  the  eminent  counsel 
engaged  in  it,  and  the  opinion  of  Senator  Golden,  furnish  strong 
evidence  that  the  law  was  deemed  to  be  too  well  settled,  to  warrant 
any  debate  in  regard  to  it. 

That  learned  judge  says,  in  his  opinion  (p.  661),  that  the  re- 
ceipt for  the  premium  ''answers  all  the  use  of  a  policy,  except  that 
the  latter  authorizes  the  assured,  in  case  of  loss,  to  sue  in  a  court  of 
law,  instead  of  being  obliged  to  resort,  as  in  this  case,  to  a  court  of 
chancery." 

The  case  cited  has  ever  since  been  regarded  as  decisive  of  the  juris- 
diction in  equity.  Thus,  the  now  chief  justice,  in  delivering  the 
opinion  of  the  supreme  court,  in  Lightbody  v.  The  North  American 
Fire  Insurance  Company  (23  Wend.  18,  25),  speaking  of  a  state 
of  facts  similar  to  those  in  this  bill,  says,  "if  his  remedy  at  law  was 
questionable"  (and  the  judge  thought  he  had  such  a  remedy  by  an 
action  on  the  case),  "he  had  a  perfect  equitable  right  to  the  delivery 
of  the  usual  policy,  which  he  might  have  enforced  in  the  proper  forum;" 
citing  Perkins  v.  The  Washington  Insurance  Company.  .  .  .  With 
these  authorities,  and  I  may  add,  the  very  general  understanding  of 
the  profession  for  a  long  period  that  such  is  the  law,  I  have  no  doubt 
as  to  the  jurisdiction  in  this  case.  It  surely  can  make  no  difference  in 
respect  of  the  jurisdiction,  that  the  loss  insured. against  has  occurred. 
1   Eq.-4 


50  SPECIFIC    PERFORMANCE    OF  CONTRACTS  (Part    1 

The  only  ground  upon  which  it  can  be  maintained,  is  for  a  specific 
performance  by  the  execution  and  deHvery  of  a  pohcy.  The  further 
relief  by  decreeing  payment,  where  there  has  been  a  loss,  is  merely 
incidental,  and  to  avoid  expense.  Now  take  the  instance  of  an  agree- 
ment to  insure,  where  there  has  been  no  loss.  The  right  of  the  assured 
to  receive  a  policy  is  perfect  and  may  be  enforced  immediately,  the 
premium  having  been  paid.  An  action  at  law  in  such  a  case  would  be 
worse  than  useless  to  him,  for  he  could  recover  no  more  than  nominal 
damages.  The  value  of  a  policy,  previous  to  a  loss,  would  not  be 
sufficient  to  carry  the  costs  of  a  suit  at  law. 

In  this  respect  it  is  wholly  unlike  the  contract  to  deliver  bills  or 
notes  payable  at  a  future  day,  on  a  sale  of  goods.  There,  on  a  failure 
to  deliver  the  bills  or  notes,  an  action  lies  upon  the  special  agreement, 
in  which  the  damages  may  be  at  once  ascertained  and  full  justice 
done,  by  giving  the  price  of  the  goods  sold.  Here,  after  a  barren  re- 
covery at  law  for  the  non-delivery  of  the  policy,  if  a  loss  occurred, 
another  suit  must  be  brought  for  the  real  damages ;  and  in  the  second 
suit,  the  assured  would  probably  encounter  a  plea  setting  up  the  first 
recovery  as  a  bar  to  a  further  prosecution. 

It  is  obvious  that  a  suit  at  law,  before  a  loss,  is  an  inadequate,  if 
not  a  fatal  mode  of  redress.  And  as  I  have  remarked,  the  principle 
of  the  jurisdiction  in  equity,  is  the  same  whether  a  loss  has  occurred 
or  not.  It  therefore  cannot  be  taken  away  or  impaired,  if  perchance 
the  remedy  at  law,  when  first  invoked  after  a  loss,  may  lead  to  the 
same  results. 

The  demurrer  must  be  overruled  with  costs,  and  the  usual  order 

entered. 


STUART  v.  PENNIS. 

(Supreme  Court  of  Virginia,  1895,  91  Va.  688,  23  S.  E.  509.) 

Rie;ly,  J.  This  is  a  suit  in  equity  to  compel  the  specific  performance 
of  a  contract  in  writing  for  the  sale  of  growing  timber  trees.  Upon 
a  demurrer  to  the  bill,  it  was  dismissed  by  the  court. 

There  was  and  could  be  no  objection  urged  against  the  relief  sought 
growing  out  of  any  indefiniteness  as  to  the  terms  of  the  contract,  or 
as  to  its  subject-matter.  The  defense  of  the  appellee  was  that  the 
subject  of  the  contract  was  personal  property,  and  not  an  interest  in 


Cb.    2)  AFFIRMATIVE    CONTRACTS  51 

real  estate ;  and  being  personal  property,  and  there  also  being  an  ade- 
quate remedy  at  law  for  the  breach  of  the  contract,  a  court  of  equity 
would  not  specifically  enforce  it. 

On  the  other  hand,  counsel  for  the  appellant  claimed  that  standing 
trees  so  pertain  to  the  soil  that  a  contract  for  their  sale  is  in  law  a  sale 
of  an  interest  in  land ;  and  that  as  under  the  general  rule,  a  court  of 
equity  will  always  enforce,  in  a  proper  case,  the  specific  performance 
of  a  contract  for  the  sale  of  land  (2  Minor's  Inst.  867 ;  and  Pomeroy 
on  Specific  Performance  of  Contracts,  sec.  10),  such  relief  should 
have  been  granted  in  this  case.     .     . 

Land  includes  everything  belonging  or  attached  to  it,  above  and 
below  the  surface.  It  includes  the  minerals  buried  in  its  depths, 
or  which  crop  out  of  its  surface.  It  equally  includes  the  woods  and 
and  trees  growing  upon  it.  Rooted  and  standing  in  the  soil,  and  draw- 
ing their  support  from  it,  they  are  regarded  as  an  integral  part  of  the 
land  just  as  are  the  coal,  the  iron,  the  gypsum,  and  the  building  stone 
which  enter  so  largely  into  the  business  of  commerce.  Attached  to 
the  soil,  they  pass  with  the  land  as  a  part  of  it.  A  conveyance  of  the 
land  carries  with  it  to  the  grantee  the  right  to  the  forests  and  trees 
growing  upon  it.  In  the  dealings  of  men,  growing  timber  is  ever 
regarded  as  a  part  of  the  realty.  Upon  the  death  of  the  ancestor 
they  pass  with  it  to  his  devisee,  or  descend  with  it  to  his  heir,  and  not 
to  his  executor  or  administrator.  They  are  not  treated  as  personalty. 
They  are  not  subject  to  levy  and  sale  under  execution.  And  so,  upon 
principle,  sound  reason,  and  authority,  we  are  of  opinion  that  they  con- 
stitute an  interest  in,  or  are  a  part  of,  the  land,  and  must  be  so  treated 
by  the  courts. 

We  are  the  better  satisfied  with  the  coiiclusion  reached,  in  that  it 
has  the  merit  of  being  easily  understood  and  readily  applied,  not  only 
to  this  particular  industry,  but  to  the  many  other  useful,  varied,  and 
boundless  natural  products  of  a  similar  kind  of  the  section  of  the 
State  whence  this  ca'se  comes,  in  whose  development  its  people  are 
becoming  more  largely  engaged  year  by  year.  Pnit  if  the  contract 
was  not  to  be  treated  as  a  sale  of  an  interest  in  land,  of  which  it  is 
as  much  a  matter  of  course  for  a  court  of  equity  to  decree  a  specific 
performance  as  it  is  for  a  court  of  law  to  give  damages  for  the  breach 
of  it,  we  are,  nevertheless,  of  the  opinion  that  it  would  be  a  proper 
case  for  the  enforcement  of  the  contract.  While  the  doctrine  is  well 
established  that  a  court  of  equity  will  not,  in  general,  decree  the  specific 


52  SPECIFIC   PEEFOEMANCE   OF  CONTEACTS  (Part    1 

performance  of  contracts  relating  to  chattels,  yet  it  will  do  so  where 
the  remedy  at  law  is  inadequate  to  meet  all  the  requirements  of  a 
given  case,  and  to  do  complete  justice  between  the  parties. 

The  true  equity  rule  is  thus  laid  down  in  Story's  Equity  J.,  sec.  33: 
"The  remedy  must  be  plain;  for  if  it  be  doubtful  and  obscure  at  law, 
equity  will  assert  a  jurisdiction.  It  must  be  adequate;  for  if  at  law 
it  fall  short  of  what  the  party  is  entitled  to,  that  founds  a  jurisdiction 
in  equity.  And  it  must  be  complete;  that  is,  it  must  attain  the  full 
end  and  justice  of  the  case.  It  must  reach  the  whole  mischief  and 
secure  the  whole  right  of  the  party  in  a  perfect  manner,  at  the  present 
time,  and  in  future;  otherwise,  equity  will  interfere  and  give  such 
relief  and  aid  as  the  exigency  of  the  particular  case  may  require." 

The  remedy  at  law  would  fall  short  in  the  case  at  bar  of  measuring 
up  to  this  rule.  The  vendee  had  the  right,  if  he  chose  to  exercise  it, 
to  let  the  trees  remain  standing  upon  the  land  for  a  period  of  three 
years.  Where  the  fulfillment  or  execution  of  a  contract  may  extend 
through  several  years,  it  would  be  difficult  to  estimate  the  damages. 
His  profits,  depending  in  such  case  on  future  events,  could  not  be  es- 
timated in  present  damages  without  being  largely  conjectural.  As 
is  said  by  Pomeroy  in  his  book  on  Contracts,  sec.  15:  "To  compel  a 
party  to  accept  damages  under  such  circumstances  is  to  compel  him  to 
sell  his  possible  profits  at  a  price  depending  on  a  mere  guess." 

Then  again,  the  trees  included  within  the  body  of  land  described  in 
the  contract  and  bought  by  the  appellant  have  not  been  marked  or 
counted,  and  he  has  been  forbidden  by  the  appellee  to  mark  or  disturb 
them.  He  has  no  way  of  ascertaining  their  number  but  by  going  on 
the  land  and  marking  and  counting  them.  After  being  forbidden  to  do 
this,  he  is  without  the  means  of  ascertaining  the  number  of  the  dif- 
ferent kinds  of  trees  purchased,  and  without  knowing  their  number, 
it  is  not  possible  to  ascertain  his  damages.  The  remedy  at  law  in  this 
case  would  clearly  be  neither  adequate  nor  complete. 

For  the  foregoing  reasons,  we  are  of  opinion  that  the  court  erred 
in  sustaining  the  demurrer  to  the  bill,  and  the  decree  complained  of 
must  be  reversed. 


Ch.    2)  AFFIRMATIVE    CONTRACTS  53 


RECTOR  OF  ST.  DAVID'S  v.  WOOD. 

(Supreme  Court  of  Oregon,  1893,  24  Ore.  39G,  34  Pac.  18.) 

Moore,  J.  .  .  .  The  record  shows  that  the  stone  which  defend- 
ant agreed  to  furnish  is  of  a  pecuhar  kind,  color,  quahty,  and  texture, 
and  that  no  other  stone  of  hke  character  can  be  procured ;  that  he  had 
furnished  enough  of  such  stone  to  build  about  two-thirds  of  the  walls, 
and  if  plaintiff  cannot  procure  a  sufficient  quantity  of  the  same  kind  to 
complete  the  w^ork,  it  will  be  necessary  to  use  other  stone  and  thus 
destroy  the  beauty  and  harmony  of  its  building,  or  the  walls  must  be 
taken  down  and  rebuilt  with  other  stone;  that  defendant  is  insolvent, 
and  therefore  unable  to  complete  his  contract,  although  he  has  received 
nearly  the  whole  consideration  therefor.  Under  this  state  of  facts, 
can  a  court  of  equity  decree  a  partial  performance,  so  as  to  carry  out 
as  near  as  possible  the  original  intent  of  the  parties?  The  contract 
was  to  furnish  the  stone  and  other  material,  and  erect  the  walls. 
The  defendant's  pecuniary  condition  precludes  a  specific  performance 
of  that  part  of  his  contract  which  required  him  to  furnish  other  neces- 
sary material  and  do  the  labor,  if  such  a  decree  were  possible  (Pom- 
eroy.  Specific  Performance  §  293)  ;  but  if  he  be  incapacitated  from 
performing  it  in  the  precise  terms,  the  court  will,  if  it  is  possible, 
decree  a  specific  execution  according  to  its  substance,  by  making  such 
variation  from  unessential  particulars  as  the  circumstances  of  the 
case  require  or  permit :    Idem,  §  297. 

Courts  will  not  generally  decree  the  specific  performance  of  a  con- 
tract to  deliver  personal  property  (Waterman,  Specific  Performance, 
§  16),  and  yet  it  was  held  in  Hapgood  v.  Rosenstock,  23  Fed.  Rep. 
86,  that  "agreements  for  the  assignment  of  a  patent,  and  for  the  de- 
livery of  chattels  which  can  be  supplied  by  the  vendor  alone,  are  among 
those  which  will  be  specifically  enforced."  This  decision  was  ap- 
proved by  the  supreme  court  of  Massachusetts  in  Adams  v.  Messenger, 
147  Mass.  185  (17  N.  E.  491).  Applying  these  rules  to  the  case  at  bar. 
the  defendant  has  stone  which  cannot  be  procured  from  any  other 
quarry,  and  plaintiff  must  use  it  or  the  harmony  of  its  building  will 
be  marred,  and  since  llic  defendant  cannot  l)e  re([uirc(l  lo  do  that 
which  his  pecuniary  condition  forbids,  he  can  be  negatively  required 


54  SPECIFIC    PERFOE.MANCE    OF  CONTEAOTS  (Part    1 

to  specifically  perform  the  contract  by  compelling  him  to  allow  the 
plaintifif  to  take  the  necessary  stone  to  complete  the  building.     .     .  •  . 


EQUITABLE  GAS  LIGHT  CO.  v.   BALTIMORE  COAL  TAR 

&  MANUFACTURING  CO. 

(Court   of   Appeals    of    Maryland,    1885,    63    Md.,    285.) 

AivVEY,  C.  J.  .  .  .  It  is  certainly  a  well  recognized  general  prin- 
ciple by  Courts  of  equity  that  they  will  not  decree  specific  perform- 
ance of  contracts  for  the  sale  of  goods  and  chattels,  not  however  be- 
cause of  the  nature  of  the  property,  the  subject-matter  of  the  con- 
tract, but  because  damages  at  law,  calculated  on  the  market  price  of 
the  goods  and  chattels  bargained  for,  furnish,  in  ordinary  cases,  an 
adequate  redress  to  the  purchaser  for  the  breach  of  the  bargain  by 
the  vendor.  2  Sto.  Eq.,  sec.  717;  Sullivan  vs.  Tuck,  1  Md.  Ch.  Dec, 
63.  But  there  are  many  exceptions  to  this  general  rule,  founded 
principally  upon  the  inadequacy  of  the  remedy  at  law  in  the  particular 
case,  or  the  special  and  peculiar  nature  and  value  of  the  subject-mat- 
ter of  the  contract.  In  the  2nd  vol.  of  Story's  Equity,  sections  718  to. 
725,  the  general  rule,  with  the  exceptions  thereto,  will  be  found  fully 
discussed,  with  reference  to  all  but  the  very  recent  cases.  And  among 
the  cases  forming  exceptions  to  the  general  rule,  there  is  one  stated 
of  a  contract  for  the  sale  of  800  tons  of  iron,  to  be  paid  for  in  a 
certain  number  of  years  by  instalments,  of  which  specific  performance 
was  decreed;  for  the  reason,  as  supposed  by  the  author,  that,  under 
the  particular  circumstances  of  the  case,  there  could  be  no  adequate 
compensation  in  damages  at  law ;  for  the  profits  upon  the  contract 
being  dependent  upon  future  events  could  not  be  correctly  estimated 
in  an  award  of  present  damages.  And  so  in  the  case  put  by  Lord 
Hardwicke,  in  the  case  of  Buxton  vs.  Lister,  3  Atk.,  385,  and  repeated 
by  Judge  Story,  as  an  apt  illustration;  a  man  may  contract  for  the 
purchase  of  a  great  quantity  of  timber,  as  a  ship-carpenter,  by  reason 
of  the  vicinity  of  the  timber,  and  this  may  be  well  known  and  under- 
stood on  the  part  of  the  seller ;  and  in  such  case  a  specific  performance 
would  seem  to  be  indispensable  to  justice.  And  so  Mr.  Pomeroy  in 
his  excellent  work  on  Specific  Performance  of  Contracts,  sec.  15,  p. 


Ch.    2)  AFFIEMATIVE    CONTRACTS  55 

20.  states  it  as  a  well  settled  principle  in  the  doctrine  of  specific  per- 
formance, that  a  contract  for  the  sale  and  delivery  of  chattels  which 
are  essential  in  specie  to  the  plaintiff,  and  which  the  defendant  can 
supply,  while  no  one  else  can,  will  be  specifically  enforced.  In  such 
case  the  plaintitif  could  not  be  indemnified  by  any  such  amount  of 
damages  as  he  could  recover  at  law. 

In  this  case  the  allegation  is  that  the  coal  tar  contracted  to  be  sup- 
plied by  the  defendant  is  indispensabe  to  the  business  of  the  plaintiflf, 
and  that  the  latter  cannot  otherwise  obtain  a  supply  in  the  City  of 
Baltimore,  and  that  if  the  defendant  were  permitted  to  withhold  the 
supply,  the  plaintiff  would  be  subjected  to  great  additional  expense  and 
labor  in  procuring  the  material  from  distant  cities.  This  gives  the 
material  a  special  and  peculiar  value  to  the  plaintiiT  in  Baltimore,  and 
makes  it  specially  inequitable  in  the  defendant  to  refuse  to  perform 
its  agreement.  As  was  said  by  the  Chancellor  in  Sullivan  v.  Tuck, 
supra,  it  would  be  impossible,  or  at  all  events  extremely  dilificult,  for 
a  Court  of  law  to  give  the  plaintiff  adequate  damages,  that  is,  to  de- 
termine and  measure  the  amount  of  damages  which  the  plaintiff  may 
sustain  in  the  future,  by  the  refusal  to  allow  it  to  take  away  the 
material  from  the  defendant's  works,  in  fulfillment  of  the  contract. 
The  contract,  therefore,  according  to  the  allegations  of  the  bill,  being 
one  of  a  nature  proper  to  be  specifically  enforced,  the  Court  will 
interfere  by  injunction  to  restrain  the  defendant  from  otherwise  dis- 
posing of  the  subject-matter  of  the  contract,  though  the  negative  ob- 
ligation not  to  otherwise  dispose  of  the  material  may  be  only  implied 
from  the  positive  terms  of  the  agreement.  This  principle  is  abundantly 
established  by  repeated  decisions. 

Order  affirmed,  and  cause  remanded. 


O'NEILL  V.  WEBB. 

(Missouri    Court    of    Appeals,    1898,    78    Mo.    App.    1.) 

Ellison,  J.  This  action  is  based  on  a  bill  in  equity  to  compel  de- 
fendant to  transfer  to  plaintiff  three  shares  of  stock  in  tlic  Webb 
City  Ice  &  Storage  Company.  The  trial  court  gave  plaintiff  a  decree 
and  defendant  appeals.     .     .     . 


56  SPECIFIC   PERFORMAlSrCE   OF  CONTRACTS  (Part    1. 

In  the  first  place  the  rcHef  sought  here  by  plaintiff  is  questioned, 
viz :  Compelling  defendant  to  transfer  to  plaintiff  three  shares  of  his 
stock  in  the  corporation  so  as  to  make  plaintiff  an  owner  of  one  half 
of  the  entire  capital  stock.  It  is  contended  that  full  relief  may  be  had 
in  damages.  We  grant  that  ordinarily  specific  performance  of  a 
contract  for  the  transfer  of  corporate  stock  will  be  denied.  But  we 
think  this  a  proper  case  for  the  relief  asked.  It  is  an  exceptional  case. 
It  will  be  noticed  that  the  contract  contemplates  not  merely  the  trans- 
fer to  defendant  of  three  shares  of  stock,  but  that  he  shall  transfer 
stock  sufficient  that  plaintiff  shall  be  the  owner  of  one  half  of  the 
entire  stock.  The  words  of  the  contract  are  "one  half  of  all  the  stock" 
of  the  corporation. 

It  so  happens,  in  this  case,  that  added  to  what  stock  plaintiff  owned 
and  which  was  retransferred  to  him  by  defendant  as  directed  by  the 
contract,  it  only  required  the  transfer  of  three  more  shares  to  put 
plaintiff  into  the  ownership  of  one  half  of  all.  But  the  chief  value 
would  not  be  the  money  value  of  the  three  shares,  but  rather  the  power 
and  influence  it  would  give  plaintiff'  in  the  management  and  direction 
of  the  corporation.  By  becoming  owner  of  one  half  the  stock  plain- 
tiff would  be  enabled  to  check  any  proposed  management  of  the  com- 
pany's affairs  which  he  might  think  was  detrimental.  And  so  it  ap- 
pears clear  to  us  that  this  is  not  like  a  case  where  one  should  merely 
seek  the  compulsory  transfer  of  some  shares  of  stock,  which  would 
only  have  the  effect  of  putting  him  into  possession  and  ownership  of 
such  shares  the  loss  of  which  might  readily  be  made  good  by  damages 
in  the  shape  of  the  money  value  of  such  stock.  We  think,  therefore, 
that  the  case  is  exceptional  and  that  plaintiff  has  no  adequate  remedy 
at  law. 

We  have  not  been  able  to  discover  any  reason  for  interfering  with 
the  decree  of  the  trial  court  and  hence  affirm  the  judgment. 

All  concur. 


S HUBERT  V.  WOODWARD. 
(United  States  Circuit  Court  of  Appeals,  1909,  167   Fed.   Rep.  47.) 

Sanborn,  C.  J.  The  complainants  pray  in  their  bill,  and  the  orders 
challenged  grant,  a  temporary  injunction  against  the  violation  by  the 
defendants  of  the  contract  of  May  4,  1908.     .     .     . 


Cb.    2)  AFFIRMATIVE    CONTRACTS  5 


D/ 


The  specific  performance  of  a  contract  by  a  court  of  equity  is  not 
a  matter  of  right.  It  rests  in  the  discretion  of  the  court,  not  in  its 
arbitrary  whimiscal  will,  but  in  its  sound  judicial  discretion  informed 
and  directed  by  the  established  principles,  rules,  and  practices  of 
equity  jurisprudence.  Hennessey  v.  Woolworth,  128  U.  S.  438.  442, 
9  Sup.  Ct.  109,  32  L.  Ed.  500.  Nor  are  these  principles  and  rules 
and  this  practice  hard,  fast,  or  without  exception.  They  are  rather 
advisory  than  mandatory,  and  the  application  of  the  rules  and  of 
their  exceptions  to  each  particular  case  as  it  arises  is  still  intrusted  to 
the  conscience  of  the  chancellor.  Yet  these  principles  and  rules  and 
this  practice  serve  to  inform  the  intellect  and  to  enlighten  the  con- 
science, and  by  them  the  judicial  discretion  of  the  court  must  be 
guided.     .     .     . 

The  amusement  company  agreed  by  the  fourth,  seventh,  eighteenth, 
and  nineteenth  paragraphs  of  the  contract  that  it  would  supervise 
and  control  without  charge,  and  that  Woodward  should  manage  for 
$50  per  week,  the  Shubert  Theater,  subject  to  the  orders  and  direc- 
tions of  the  Shuberts,  that  \\'oodward  would  approve  the  bookings 
of  the  theater,  and  that  its  funds  should  be  deposited  to  the  credit 
of  the  Shuberts'  account  by  a  treasurer  appointed  by  them.  Neither 
the  amusement  company  nor  the  court,  however,  has  the  power  to 
efficiently  compel  Woodward  to  do  any  of  the  things  here  required 
to  be  done  by  his  personal  services,  because  he  is  not  a  party  to  the 
contract,  he  has  not  agreed  to  do  as  the  contract  recites,  and  be- 
cause, if  he  had  signed  and  agreed,  the  examination  and  approval 
of  the  bookings  and  the  suitable  management  of  the  theater  are 
personal  acts  whose  rightful  performance  requires  special  knowledge 
and  experience  in  the  business  of  operating  theaters,  and  the  exer- 
cise of  skill,  discretion,  and  cultivated  judgment,  and  in  the  end 
rests  wholly  in  the  will  of  Woodward.  Courts  of  equity  have  no 
efficient  means,  and  therefore  will  not  ordinarily  attempt,  to  constrain 
an  individual  to  perform  personal  acts  which  require  special  knowl- 
edge and  experience  and  the  exercise  of  skill,  discretion,  and  cul- 
tivated judgment.     .     . 

Again,  the  enforcement  of  the  specific  performance  of  the  con- 
tract in  hand  will  necessarily  entail  upon  the  courts  through  many 
years  the  supervision  and  direction  of  a  continuous  series  of  acts, 
many  of  which  will  present  the  question  whether  or  not  they  accord 
with  the  contract,  such  as,  what  bookings  should  be  ai)])roved  or  dis- 


58  SPECIFIC    PERFORMANCE    OF  CONTRACTS  (Part    1 

approved,  how  many  and  what  persons  should  be  employed  to  operate 
the  theater,  how  the  intricate  details  of  the  business  of  the  theater 
should  be  conducted,  how  its  operation  should  be  advertised,  and 
many  other  unforeseen  issues  which  the  complicated  performance  con- 
templated cannot  fail  to  raise.  It  is  conceded  that  a  court  of  equity  has 
ample  power  to  determine  all  these  questions  and  to  conduct  this  busi- 
ness by  its  receiver,  or  master,  and  that  it  will  sometimes  enforce  the 
performance  of  contracts  where  the  performance  involves  more  in- 
tricate details,  or  longer  periods  of  time,  where  the  other  equities  of  the 
complainant  in  the  case,  or  the  public  interest,  are  controlling.  But 
in  the  absence  of  such  public  interest,  or  such  controlling  equities,  or 
of  clear  evidence  that  irreparable  injury  will  probably  result  to  the 
complainant  if  it  withholds  the  relief  sought,  a  court  of  equity  does 
not  constrain,  and  it  ought  not  to  compel,  the  enforcement  of  the 
specific  performance  of  a  contract  which  cannot  be  consummated  by 
a  speedy,  final  decree,  but  which  involves  the  supervision  of  a  con- 
tinuous series  of  acts  which  must  extend  through  a  long  period  of 
time  and  which  will  require  the  exercise  of  special  knowledge,  judg- 
ment, and  experience.  The  brevity  of  time  and  the  duty  of  the  court 
to  other  litigants  praying  the  determination  of  their  suits  ordinarily 
forbid  a  court  to  assume  unnecessarily  so  burdensome  a  task. 


POWELL  V.  SANTA  FE  R.  R. 

(Supreme  Court  of  Missouri,  1908,  215  Mo.  339,  114  S.  W.  1067.) 
Valliant,  p.  J.     .     .     .     "After  findings  on  the  issues  submitted 
to  the  jury  had  been  reported,  the  court  entered  the  following  find- 
ing and  judgment :     .     .     . 

"In  our  opinion  this  case  should  be  determined  with  respect  to 
plaintifif's  equity  arising  from  the  fact  that  when  the  railroad  was 
first  built,  a  subway  was  left  for  his  use  and  he  constructed  his  barns 
and  fences  with  reference  to  that  way.  It  appears  that  he  has  two 
barns  immediately  north  of  the  track  and  an  inclosure  around  them 
where  he  feeds  his  stock.  Some  three  hundred  feet  away  and  on 
the  south  side  of  the  track  is  the  spring  to  which  the  stock  go  from 
the   lots  about  the   barns   to   get   water.      To   use   a   grade   crossing, 


Ob.    2)  AFFIRMATIVE    CONTRACTS  50 

plaintiff  will  be  compelled  to  reconstruct  his  fences  and  barns  or  pat- 
ten dollars  a  month  to  a  hand  to  watch  his  cattle  as  they  go  through 
the  gates  and  over  the  grade  crossing  to  get  water.  This  will  render 
his  farming  operations  more  irksome  and  expensive  and  his  farm 
less  valuable.  There  is  some  testimony  that  he  might  dig  a  pond  on 
the  north  side  of  the  railroad;  but  this  testimony  is  accompanied  by 
the  statement  of  the  witness  that  the  pond  would  soon  be  filled  with 
mud.  It  is  apparent  to  any  one  that  serious  inconvenience  and  con- 
siderable loss  will  be  thrown  on  the  plaintiff  if  he  is  forced  to  do 
without  the  undergrade  way.  No  testimony  is  before  us  by  which 
we  can  coinpare  the  expense  he  would  be  put  to  in  changing  his 
present  arrangements  with  the  expense  of  the  defendant  in  making 
an  arched  passage  through  the  embankment.  The  railway  company 
chose  not  to  prove  what  the  cost  of  the  underground  passage  would 
be,  though  it  was  easy  to  prove.  We  are.  therefore,  left  to  our  own 
judgment  about  the  matter,  which  is  that  the  expense  of  constructing 
an  arch  would  be  much  less  in  the  long  run  than  the  expense  to  the 
plaintiff  in  using  the  grade  crossing,  to  say  nothing  of  the  incon- 
venience of  doing  so.  Now,  the  company's  having  left  a  subway  for 
the  plaintiff  from  the  first,  and  permitted  him  to  use  it  for  ten  or 
twelve  years  and  arrange  his  barns  and  fences  with  reference  to  it, 
gives  him  a  clear  equity  to  have  the  continued  use  of  it,  unless  the 
damage  to  the  defendant  will  be  out  of  proportion  to  the  benefit  to 
him.  The  testimony  of  defendant's  witness  Saunders  explodes  the 
theory  that  a  subway  will  be  detrimental  to  defendant's  property  or 
dangerous  to  its  employees  or  the  public.  We  think  the  cost  of  build- 
ing it  will  not  be  inordinate.     .     .     . 

The  right  that  a  farmer  has  to  the  establishing  of  a  crossing 
where  a  railroad  divides  his  land,  is  given  by  statute  and  the  statute 
itself  seems  to  come  naturally  in  response  to  a  demand  of  right  and 
justice.  The  statute  is,  to  a  considerable  extent,  general  in  its  terms, 
leaving  many  details  to  be  adjusted  according  to  the  particular  situa- 
tion and  circumstances  of  the  particular  case,  and  this  adjustment 
must  be  made  by  the  court  according  to  the  dictates  of  an  intelligent 
sense  of  justice,  regarding  the  rights  and  duties  both  of  the  railroad 
company  and  those  also  of  the  landowner.  The  statute  has  given  to 
neither  the  one  nor  the  other  the  right  to  dictate  the  location  or  manner 
of  construction ;  therefore,  when  the  parties  cannot  agree,  the  court 
must  exercise  its  best  judgment  and  decide  the  controversy  with  due 


GO  SPECIFIC    PERFORMANCE    OP  CONTRACTS  (Part    1 

regard  to  the  rights  of  Ijoth.  W'e  thhik  that  the  opinion  above-herein 
copied  shows  that  the  Court  of  Appeals  understood  and  appreciated 
the  situation  and  correctly  applied  the  law  to  the  facts  of  the  case ; 
therefore,  we  adopt  that  opinion  as  the  opinion  of  this  court.     .     .     . 


HARPER  V.  VIRGINLAN  RY.  CO. 

(Supreme   Court  of  Appeals   of  West   Virginia,    1915,   76   W.   Va.   788;    86   S. 

E.  919.) 

Miller,  J.  The  covenant  in  plaintiff's  contract  of  September  20, 
1902,  and  in  their  deed  of  February  23.  1903,  a  part  of  the  con- 
sideration for  their  grant  of  a  right  of  way  and  depot  grounds  to 
the  Deepwater  Railway  Company,  defendant's  predecessor  in  title, 
and  specific  execution  of  which  is  sought  by  the  bill,  is  as  follows : 
"It  is  further  agreed  that  said  Railway  Company  is  to  erect  on  the  land 
of  the  parties  of  the  first  part,  a  depot,  for  the  general  accommodation 
of  the  public.  The  said  depot  is  to  be  built  and  operated  within  one 
year  from  the  completion  of  said  R.  R."     . 

(1)  The  first  proposition,  that  a  court  of  equity  will  not  decree 
specific  performance  of  such  a  contract,  is  not  one  of  general  applica- 
tion. A  correct  statement  of  the  rule,  according  to  reason,  and  the 
great  weight  of  authority  is,  that  such  contracts  are  not  void  per  se 
and  will  be  specifically  enforced,  unless  to  do  so  would  be  to  subor- 
dinate public  to  private  interests,  or  would  so  hamper  the  railway 
company  that  it  would  not  properly  discharge  its  duties  to  the  pub- 
lic in  general.     .     .     . 

(2)  It  is  true  that  specific  performance  is  not  always  a  matter 
of  right,  and  rests  in  the  sound,  not  arbitrary  discretion  of  the  court; 
but  specific  performance  will  not  be  withheld  when  no  hardship  or 
injustice  will  result,  and  where  an  action  at  law  for  damages  will 
not  be  adequate.  We  do  not  think  the  case  presented  here  can  be 
relievable  at  law  as  completely  and  adequately  as  by  specific  perform- 
ance. How  could  the  plaintiiT's  damages  be  measured?  Not  only  is 
valuable  property  involved,  but  the  service  of  the  railway  company 
to  the  public  in  general,  and  to  plaintiffs  in  particular,  and   for  an 


Cb.    2)  AFFIRMATIVE    CONTBACTS  61 

indefinite  time,  not  inconsistent  with  the  public  interests,  is  also 
involved.  How  could  damages  of  this  character  be  adequately  meas- 
ured in  a  court  of  law?  Our  decisions  say,  generally,  that  the  rem- 
edy at  law  must  be  as  adequate  and  complete  as  in  equity  in  order  to 
deprive  one  of  equitable  relief. 

We  are  of  opinion  that  the  decree  should  be  so  modified  as  to 
continue  the  same  in  force  so  long  and  so  long  only  as  consistently 
with  defendant's  duties  to  the  public  in  general,  and  compliance  there- 
with shall  not  have  become  unduly  burdensome  and  unjust,  and  the  de- 
fendant may  reasonably  be  required  to  maintain  and  operate  the  depot 
at  Harper,  and  that  when  in  accordance  with  these  principles  it  can  no 
longer  reasonably  be  required  to  continue  the  maintenance  and  op- 
eration of  said  depot,  the  coercive  power  of  the  court  may  be  with- 
drawn and  the  parties  left  to  the  pursuit  of  such  legal  remedies  as 
they  may  then  have.     .     . 

As  so  modified  we  are  of  opinion,  therefore,  to  affirm  the  decree. 


WESTERN  WAGON  AND  PROPERTY  CO.  v.  WEST. 

(Supreme   Court   of  Judicature    (1892)    1   Chancery   Division,   271.) 

Chitty,  J.  ,  .  .  The  Plaintiffs  are  the  assignees  for  value  of 
the  benefit  of  a  contract  to  make  a  loan  of  money  at  interest  upon 
security.  Having  given  notice  of  their  assignment,  they  claim  to 
recover  from  the  defendants  the  £500  which  the  defendants  lent  and 
paid  to  Pinfold  under  the  contract.  ...  A  Court  of  Equity  will 
not  decree  specific  performance  of  a  contract  to  make  or  take  a  loan 
of  money,  whether  the  loan  is  to  be  on  security  or  not.  This  w^as 
decided  by  Sir  John  Romilly  in  Rogers  v.  Challis  (1),  and  Sichcl 
V.  Mosenthal  (2),  and  these  decisions  were  approved  of  by  the  Privy 
Council  in  Larios  v.  Bonany  y  Gurety  (3).  In  other  words,  a  Court 
of  Equity  will  not  compel  the  intended  lender  to  make,  or  the  intended 
borrower  to  take  the  loan,  but  will  leave  the  parties  to  such  a  con- 
tract to  their  remedies  by  action   at   common  law    for  damages.      It 

(1)  27    Beav.    17.5. 

(2)  :iO  Beav  :!71. 

C.)      L.    R.    ■)    I'.   C.   ;540. 


62  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Part    1 

follows,  then,  that  Pinfold  could  not  have  maintained  a  suit  in  equity 
against  the  defendants  to  compel  them  to  lend  the  £500,  and  that,  in- 
asmuch as  the  plaintiff's  as  assigns  of  Pinfold,  are  in  no  better  position 
than    Pinfold    himself,    the    plaintiffs    cannot    maintain    such    a    suit. 


STROHMAIER  v.  ZEPPENFELD. 

(Missouri  Court  of  Appeals,  1877,  3  Mo.  App.  429.) 

HaydEn,  J.  This  is  a  bill  in  the  nature  of  a  bill  in  equity,  asking 
that  the  defendant  may  be  compelled  to  execute  a  renewal  of  a  lease. 
A  former  owner  of  the  leased  lot  had  leased  it  to  the  respondent  for 
a  term  of  ten  years,  and  in  the  lease  was  the  following  covenant :  "And 
it  is  covenanted  and  agreed  by  and  between  the  said  parties  that,  at 
the  end  of  the  term  hereby  demised,  this  lease  shall  be  renewable 
for  the  further  term  of  ten  years,  provided  that  the  party  of  the 
second  part  giving  [give]  to  the  party  of  the  first  part  notice  in 
writing  of  his  or  their  wish  to  renew  the  same,  three  months  at  least 
before  the  end  of  the  term.  And  the  lease  so  renewed  shall  contain 
all  the  covenants,  agreements,  clauses,  and  stipulations  herein  con- 
taind,  with  this  exception  only :  The  annual  rents  to  be  reserved  on 
the  renewal  shall  be  six  per  centum  upon  the  value  of  the  demised 
premises,  exclusive  only  of  the  improvements  thereon  placed  by  said 
lessee,  or  his  legal  representatives,  if  any,  which  value  shall  be  es- 
timated by  two  disinterested  freeholders  of  the  city  of  St.  Louis,  one 
of  whom  shall  be  selected  by  the  party  of  the  first  part  and  the  other 
by  the  party  of  the  second  part,"  etc.     .     .     . 

It  is  well  settled  that  a  court  of  equity  will  not  specifically  enforce 
a  contract  for  arbitration.  Where  arbitrators  are  to  act,  the  court 
will  neither  compel  their  appointment,  nor,  when  they  are  appointed, 
will  the  court  compel  them  to  act.  Agar  v.  Macklew,  2  Sim.  &  Stu. 
418;  Milnes  v.  Gery,  14  Ves.  Jr.  400;  Story's  Eq.  Jur.,  sec.  1457.  But 
where,  as  in  the  present  case,  the  parties  have  by  a  written  contract 
definitely  agreed  upon  all  the  substantial  terms,  equity  will  not  per- 
mit one  of  them  to  set  up  his  own  wrong  as  a  defense  to  the  non- 
performance of  the  contract,  and  thereby  to  keep  possession  of  the 


Ch.    2)  AFFIRMATIVE    CONTRACTS  63 

property  which  the  first  party  has  laid  out  in  the  expectation  that  the 
contract  would  be  performed.  In  such  a  case,  when  the  defendant 
refuses  to  comply  with  his  contract,  he  subjects  himself  to  the  op- 
eration of  those  remedies  which  courts  of  equity  afford.  Having 
broken  the  contract  himself,  it  does  not  lie  in  his  mouth  to  say  the 
contract  cannot  be  performed  because  it  provides  that  one  element 
in  ascertaining  the  rent  is  a  valuation  by  persons  to  be  selected  by  the 
parties.  The  answer  to  this  is  that,  as  the  owner  of  the  ground  re- 
ruses  to  perform  the  contract  precisely  as  made,  and  thereby  works 
a  wrong  to  the  lessee,  for  which  the  latter  has  no  adequate  legal 
remedy,  a  court  of  equity,  to  prevent  a  failure  of  justice,  applies  its 
own  remedy  to  the  breach  of  contract.  In  such  cases  a  court  of 
equity  does  not  proceed  upon  the  basis  of  enforcing  the  contract 
exactly  as  made  by  the  parties,  but  upon  the  theory  that,  while  in  all 
important  respects  the  contract  can  be  specifically  performed  as  the 
parties  made  it,  in  some  minor  matter  where,  through  the  wrong  of 
the  party  resisting,  it  cannot  be  exactly  enforced,  equity,  in  pursuance 
of  its  principle  of  substituting  compensation  for  performance,  where 
it  is  necessary  in  order  to  attain  the  ends  of  substantial  justice,  will 
apply  its  own  remedies  to  the  wrong,  and  thus  secure  that  which, 
in  essentials,  is  a  performance.  The  real  difficulty  lies  in  deciding 
what  contracts  are  so  uncertain  that  equity  will  not  apply  this  rule 
of  compensation  to  them.  On  the  one  hand,  equity  cannot  make 
contracts  for  the  parties ;  on  the  other,  it  will  not  let  the  defendant 
escape  the  consequences  of  his  obligation  where  only  some  insignificant 
detail  is  in  doubt.  While  the  rule  itself  is  admitted,  there  is  a  conflict, 
in  the  older  authorities,  as  to  what  terms  are  of  the  essence  of  a 
contract.  ...  In  Hall  v.  Warren,  9  Ves.  Jr.  605,  where  the  valua- 
tion was  to  be  by  appraisers  appointed  by  the  parties,  the  master  of 
the  rolls.  Sir  William  Grant,  said:  "Nothing  appears  in  the  acts  to 
be  done  so  purely  personal  that  they  camiot  be  supplied  without  the 
intervention  of  the  mind  and  the  act  of  the  party;  for  they  are  to 
be  done  with  reference  to  a  given  mode;  and,  with  regard  to  ascer- 
taining the  value,  a  mode  equivalent  and  as  effectual  and  fair  may  be 
found."  Whatever  may  be  said  as  to  the  older  cases,  this  appears  to 
be  an  accurate  expression  of  the  principle  upon  whicli  the  more  recent 
cases  have  proceeded.  In  judson  v.  Judson,  1*^  Ivng.  Law  &  lv|. 
547,  where  the  contract  provided  that  each  parly  should  appoint  a 
valuer,  and   the   valuers  appointed  could   not   agree,   and   the  vendor 


G4  'SPECIFIC   PERFORMANCE  OP  CONTRACTS  (Part    1 

then  refused  to  join  in  any  scheme  for  a  valuation,  the  court  decreed 
specific  performance.  The  vice-chancellor  said :  "The  sixth  condition 
stated  that  the  purchaser  should  take  the  property  at  a  valuation,  the 
essence  of  the  stipulation  not  appearing  to  be  the  mode  in  which  the 
valuation  was  to  be  made."  Bunnell  v.  Ketaltas,  16  Abb.  Pr.  205; 
Kelso  V.  Kelly,  1  Daly,  419,  where  the  authorities  are  reviewed  with 
much  care.  It  seems  clearly  the  doctrine  of  the  later  cases  that  equity 
will,  to  prevent  a  failure  of  justice,  apply  its  own  remedies,  and  thus, 
where  the  substantial  terms  of  a  contract  are  agreed  upon,  arrive 
approximately  at  the  minor  details  and  then  specifically  enforce  the 
contract.  Parker  v.  Taswell,  2  De  G.  &  J.  559;  Norris  v.  Jackson, 
3  Gif.  396;  Backus'  Appeal,  58  Pa.  St.  186,  193.  This  rule  has  an 
a-fortiori  application  where  there  is  a  part  performance,  or  where  the 
party  seeking  to  enforce  the  contract  has  laid  out  money  or  property 
in  the  faith  that  the  other  party  will  keep  his  covenants. 

It  would  be  peculiarly  hard  if  relief  should  be  denied  to  the  plain- 
tiff in  the  present  case.  Since  the  decision  of  the  Supreme  Court  of 
this  state  in  the  case  of  Arnot  v.  Alexander,  44  Mo.  25,  persons  taking 
leases  with  covenants  similar  to  that  in  the  present  lease  have  had,  in 
some  sort,  a  right  to  expect  that  courts  of  equity  in  this  state  will 
enforce  them.  The  clause  drawn  in  question  in  that  case  is  not,  in- 
deed, precisely  similar  to  the  one  here  in  dispute.  But  the  court 
argued  from  the  certainty  of  a  covenant  of  the  present  kind  to  the 
covenant  there  in  question.  Stating  it  as  an  established  proposition 
that  a  court  of  equity  would  hear  evidence  and  fix  the  amount  of  the 
rent,  in  a  case  where  the  amount  for  the  renewal  term  is  left  to 
be  determined  by  the  valuation  of  third  parties,  the  Supreme  Court, 
passing  over  the  later  cases  from  Vesey,  Jr.,  presented  to  its  con- 
sideration, sanctioned  the  doctrine  of  Sir  William  Grant  in  Hall  v. 
Warren,  which  has  been  quoted  above.  Wherever  a  rule  is  laid  down 
which  may  operate  as  a  rule  of  property,  the  courts  ought  not  to  de- 
part from  that  rule  without  very  strong  reasons.  It  is  believed  that 
there  are  many  leases  with  covenants  similar  to  that  contained  in  the 
present. 

The  cases  of  Biddle  v.  Ramsey,  52  Mo.  153,  and  Hug  v.  Van 
Burkleo,  58  Mo.  202,  are  not  in  conflict  with  the  recent  cases  which 
we  have  cited.  As  has  been  shown,  a  court  of  equity  does  not  en- 
force the  contract  as  made  by  the  parties,  in  such  cases  as  the  present. 
On  the  contrary,  equity  proceeds  upon  the  basis  that  the  contract, 


Ch.    2)  NEGATIVE    CONTK^CTS.  ^  65 

as  made,  cannot  be  enforced,  and  applies  its  own  remedies  to  the 
violation  of  its  rules.  The  relief  given  is  of  a  purely  equitable  nature, 
and  the  ground  on  which  the  plaintiff  is  entitled  to  it  is  that,  while  he 
has  a  clear  right  of  action,  he  has  no  adequate  remedy  at  law.  In 
the  case  of  a  covenant  like  that  now  in  question,  it  is  obvious  that  it 
is  not  of  the  essence  of  the  contract  that  the  valuation  should  be  made 
by  "disinterested  freeholders"  rather  than  by  a  court  of  equity.  That 
is  an  immaterial  detail,  and  a  mode  as  effectual  and  fair  may  be  found. 
Accordingly,  the  court  should  hear  evidence,  and  upon  the  case  as 
made,  and  upon  the  facts  as  ascertained  from  the  evidence,  specific 
performance  may  be  decreed. 


SECTION  III.  NEGATIVE  CONTRACTS. 


GUARD  V.  WHITESIDE. 

(Supreme   Court   of    Illinois,    1851,    13    111.    7.) 

This  was  an  action  of  debt  brought  in  the  Circuit  Court  of  Hardin 
County,  upon  an  injunction  bond.  The  appellants  filed  a  plea  in  bar, 
stating  that  on  the  10th  day  of  April,  1851,  it  was  agreed  between 
the  parties  to  the  suit  that  if  the  appellants  would  give  the  appellee 
a  horse  worth  seventy-five  dollars  he  would  not  bring  suit  on  the  bond 
until  the  25th  of  December,  1851 ;  that  the  horse  was  delivered  in 
pursuance  of  this  agreement.  To  which  plea  there  was  a  demurrer, 
which  was  sustained.     ... 

Treat,  C.  J.  The  defendants  pleaded  in  bar  of  the  action,  that, 
before  the  commencement  thereof,  the  plaintiff  agreed  with  one  of 
them  to  forbear  the  collection  of  the  bond  until  the  25th  of  Decem- 
ber, 1851,  if  said  defendant  would  pay  and  deliver  a  certain  horse 
at  the  price  of  $75,  which  horse  was  then  delivered.  The  agreement 
relied  on  in  the  plea  must  be  considered  as  an  undertaking  by  the 
plaintiff  not  to  sue  on  the  obligation  within  a  specified  time.  A  cove- 
nant never  to  sue  is  regarded  as  an  absolute  release.  It  is  so  held  to 
avoid  circuity  of  action;  for  if  the  covenantor  should  be  pcrmilted 
1   Eq.— 5 


66  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Part    1 

to  sue  in  violation  of  his  covenant  and  recover,  the  other  party,  in 
an  action  for  a  breach  of  the  covenant,  would  recover  precisely  the 
same  damages.  But  a  covenant  not  to  sue  within  a  limited  time  can- 
not be  pleaded  in  bar  of  an  action  brought  before  the  time  has  ex- 
pired (Evans  V.  Lohr,  2  Scam.  R.,  511;  Payne  v.  Weible,  30  111. 
R.,  166;  as  part  failure  of  consideration.  Hill  v.  Enders,.19  111.  165; 
Morgan  v.  P'allenstein,  27  111.  R.,  32 ;  Parmelee  v.  Lawrence,  44  111. 
R.,  405).  The  remedy  of  the  party  is  a  direct  action  on  the  covenant. 
The  law  on  this  subject  is  too  well  established  to  admit  of  a  doubt 
or  discussion.  It  is  only  necessary  to  refer  to  some  of  the  principal 
authorities.  Thimbleby  v.  Barron,  3  Mees.  &  Wels,  210;  Winans  v. 
Huston,  6  Wend.  471;  Perkins  v.  Oilman,  8  Pick.  229;  Walker  v. 
McCulloch,  4  Greenl.  421 ;  Ward  v.  Johns,  6  Munf .  6 ;  Lane  v.  Owings, 
3  Bibb,  247.  There  is  a  very  satisfactory  reason  why  a  plea  in 
bar  of  the  action  should  not  be  sustained.  A  judgment  for  the  de- 
fendant, on  such  a  plea,  would  forever  conclude  the  plaintiff  from 
bringing  another  action.  There  would  seem  to  be  a  propriety  in  al- 
lowing a  defendant  to  set  up  the  covenant  as  a  defense  to  the  further 
maintenance  of  an  action  brought  in  violation  thereof — such  a  defense 
as  would  defeat  the  particular  action,  without  concluding  the  plain- 
tiff from  bringing  another  after  the  time  limited  had  expired.  But 
WQ  must  be  understood  as  expressing  no  opinion  upon  the  question, 
whether  the  rules  of  the  law  will  tolerate  a  defense  of  this  character. 
The  judgment  is  afhrmed. 


JACKSON  V.   BYRNES. 

(Supreme  Court  of  Tennessee,  1899,  103  Tenn.  (19  Pickle)  698,  54  S.  W.  984.) 

Wilkes,  J.  Jackson  sold  to  Byrnes  a  livery  stable  and  outfit  for 
$1,500,  situated  in  the  town  of  Cedar  Hill,  Robertson  County.  The 
purchaser  insists  that  as  a  part  consideration  for  the  contract.  Jackson 
agreed  that  he  would  not  engage  in  the  same  business  at  that  place 
so  long  as  he,  the  purchaser,  continued  in  the  business. 

The  contention  is  that  he  breached  this  agreement  by  letting  horses 
and  wagons  to  hire.  The  plaintiff  sued  for  this  breach,  and  there 
was  a  trial  before  the  court  and  a  jury,  and  a  verdict  and  judgment 
for  $400,  and  defendant  has  appealed  and  assigned  errors. 


Ch.    2)  NEGATIVE    CONTEACTS. 


0/ 


As  the  first  assignment  of  error,  it  is  said  that  such  contract  is 
contrary  to  public  poHcy,  and  should  not  be  enforced. 

In  this  connection  it  is  said  there  is  a  variance  between  the  allega- 
tion in  the  declaration  and  the  evidence;  that  the  declaration  alleges 
that  the  defendant  was  obligated  not  to  enter  into  the  business  at 
Cedar  Hill,  while  the  evidence  was  to  the  effect  that  he  would  not 
enter  into  the  business  anywhere.  We  think  this  contention  not  well 
made,  and  taking  the  evidence  as  a  whole,  it  clearly  appears  that 
Cedar  Hill  was  the  place  of  the  location  of  the  business,  and  that  the 
contract  did  not  relate  to  doing  business  anywhere  else.  We  do  not 
think  such  an  agreement  is  so  opposed  to  public  policy  as  to  be  void. 
Such  contracts  have  been  upheld  and  enforced  by  the  courts.  Beach 
on  Modern  Law  of  Contracts,  Vol.  2,  Sec.  1569;  Clark  on  Contract, 
pages  448,  449. 

It  is  well  to  remark  in  this  connection  that  the  case  is  not  simply  one 
of  a  sale  of  good  will.  A  sale  merely  of  good  will  does  not,  of 
itself,  imply  a  contract  on  the  part  of  the  vendor  to  not  engage  again 
in  a  similar  business. 

Lord  Eldon  defined  "good  will"  as  simply  a  possibility  that  the  old 
customers  would  resort  to  the  old  place.  But  this  definition  is,  per- 
haps, too  restricted.     Slack  v.  Suddoth,  102  Tenn.  375. 

Suffice  it  to  say  that  an  obligation  not  to  enter  into  a  similar  busi- 
ness will  not  be  implied  from  a  mere  sale  and  transfer  of  good  will, 
and  the  present  is  not  such  a  case,  but  one  where  there  was  an  ex- 
press parol  agreement  collateral  with  the  conveyance  of  the  property, 
but  not  embodied  in  it,  not  to  enter  into  competition  in  the  same  busi- 
ness and  territory  as  the  plaintiff  did  business  in  so  long  as  he  con- 
tinued in  it. 

The  next  assignment  is  as  to  the  measure  of  damages.  The  court 
charged  the  jury  that  the  proper  measure  was  the  difference  in  value 
of  the  property  with  the  good  will  and  without  competition  of  the 
defendant,  and  the  value  of  the  property  without  the  good  will  and 
with  the  competition  of  the  defendant.  In  the  same  connection  the 
trial  Judge  instructed  the  jury  that  they  must  look  to  the  evidence 
and  see  if  there  was  any  competition,  and  its  character  and  extent, 
whether  full  or  slight,  and  the  extent  to  which  the  properly  was 
depreciated  from  the  purchase  price  as  agreed  on  and  as  shown  by 
the  proof,  as  the  damages  plaintiff  would  be  entitled  to  recover.  We 
do  not  understand  the  trial  judge  to  mean  that  a  single  act  of  com- 


68  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    1 

petition  would  be  a  breach  of  the  contract,  and  he  did  not  intend  to 
lay  down  two  rules,  but  only  to  instruct  the  jury  as  to  how  they  should 
arrive  at  the  difference  in  value  with  and  without  the  competition. 
But  it  is  said  the  rule  itself  is  erroneous,  and  that  the  proper  rule  is 
that  the  plaintiff  can  only  recover  such  actual  damages  and  loss  as 
he  may  be  able  to  show  up  to  the  bringing  of  the  suit.  Authorities 
are  cited  upon  both  theories.     .     .     . 

The  court  is  of  opinion  that  in  a  case  like  the  present,  and  under 
the  facts,  the  plaintiff's  proper  remedy  is  to  enjoin  the  defendant 
from  engaging  in  the  competitive  business  contrary  to  the  agreement. 

This  would,  so  far  as  results  go,  be  to  specifically  enforce  the 
contract.  If,  however,  the  plaintiff  resort  to  an  action  for  damages 
for  a  breach,  only  such  actual  damages  as  have  been  sustained  up 
to  the  bringing  of  the  suit  should  be  recovered.  If  the  competition 
is  continued,  injunction  may  also  be  resorted  to. 

It  is  practically  impossible  to  determine  the  difference  in  value  of 
the  property  or  contract  with  and  without  the  proviso  against  com- 
petition. No  witness  could  know,  and  the  plaintiff  himself  could 
not  state  how  long  he  would  continue  in  business,  and,  in  the  absence 
of  this  fact,  there  could  be  no  tangible  basis  for  an  estimate  of  dam- 
ages. 

No  sum  is  fixed  in  this  case  as  liquidated  damages,  and  there  is 
no  allegation  that  any  specific  amount  was  given  for  this  prohibition, 
but  the  statement  is  simply  to  the  effect  that  it  was  a  part  of  the  con- 
sideration. 

For  these  reasons  we  are  of  opinion  there  is  error  in  the  judgment 
of  the  court  below,  and  it  is  reversed  and  the  cause  remanded.  Ap- 
pellee will  pay  costs  of  appeal. 


•  PEABODY  V.  NORFOLK. 

(Supreme  Court  of  Massachusetts,  1868,  98  Mass.  452.) 

Gray,  J.  It  is  the  policy  of  the  law,  for  the  advantage  of  the  pub- 
lic, to  encourage  and  protect  invention  and  commercial  enterprise. 
If  a  man  establishes  a  business  and  makes  it  valuable  by  his  skill  and 
attention,  the  good  will  of  that  business  is  recognized  by  the  law  as 


Ch.    2)  NEGATIVE     CONTRACTS.  6^ 

property.  If  he  adopts  and  publicly  uses  a  trade-mark,  he  has  a 
remedy,  either  at  law  or  in  equity,  against  those  who  undertake  to 
use  it  without  his  permission.  It  he  makes  a  new  and  useful  inven- 
tion of  any  machine  or  composition  of  matter,  he  may,  upon  filing  in 
a  public  office  a  description  which  will  enable  an  expert  to  under- 
stand and  manufacture  it,  and  thus  affording  to  all  persons  the  means 
of  ultimately  availing  themselves  of  it,  obtain  letters  patent  from  the 
government  securing  to  him  its  exclusive  use  and  profit  for  a  term  of 
years.  If  he  invents  or  discovers,  and  keeps  secret,  a  process  of  manu- 
facture, whether  a  proper  subject  for  a  patent  or  not,  he  has  not  indeed 
an  exclusive  right  to  it  as  against  the  public,  or  against  those  who 
in  good  faith  acquire  knowledge  of  it;  but  he  has  a  property  in  it, 
which  a  court  of  chancery  will  protect  against  one  who  in  violation 
of  contract  and  breach  of  confidence  undertakes  to  apply  it  to  his  own 
use,  or  to  disclose  it  to  third  persons.  The  jurisdiction  in  equity  to 
interfere  by  injunction  to  prevent  such  a  breach  of  trust,  when  the 
injury  would  be  irreparable  and  the  remedy  at  law  inadequate,  is  well 
established  by  authority. 

In  the  earliest  reported  case  of  this  class.  Lord  Eldon  indeed  re- 
fused to  grant  an  injunction  against  imparting,  in  violation  of  an 
agreement,  the  secret,  not  only  of  a  patent  which  had  been  obtained 
and  had  expired,  and  which  the  whole  public  was  therefore  entitled  to 
use;  but  also  that  of  making  a  certain  kind  of  pills,  for  which  no  pat- 
ent had  been  procured;  and  stated,  as  a  reason  for  the  latter,  that, 
if  the  art  and  method  of  preparing  them  was  a  secret,  the  court 
could  not,  without  having  it  disclosed,  ascertain  whether  it  had  been  in- 
fringed. Newberry  v.  James,  2  Meriv.  446.  But  the  same  learned 
chancellor  afterwards  considered  the  general  question  as  still  an  open 
one,  whether  a  court  of  equity  would  restrain  a  party  from  divulging 
a  secret  in  medicine,  which  was  not  protected  by  patent,  but  which 
he  had  promised  to  keep ;  and  in  such  a  case  dissolved  an  injunction  of 
the  vice-chancellor,  upon  the  sole  ground  that  the  defendant  made  af- 
fidavit that  the  secret  was  not  derived  from  the  plaintiff.  Williams  v. 
Williams,  3  Meriv.  157.  And  in  a  later  case  he  unhesitatingly  granted 
an  injunction  against  one  who  by  the  terms  of  his  agreement  with  the 
plaintiff  was  not  to  be  instructed  in  the  secret,  and  who  had  obtained  a 
knowledge  of  it  by  a  breach  of  trust.  Yovatt  v.  Winyard,  1  Jac.  & 
Walk.  394. 


70  SPECIFIC   PEEFORMAlSrCE   OF  CONTEACTS  (Part    1 

Sir  John  Leach  decreed,  in  one  case,  specific  performance  of  an 
agreement  by  a  trader  to  sell  the  good  will  of  a  business  and  the  ex- 
clusive use  of  a  secret  in  dyeing;  and,  in  another,  an  account  of  the 
profits  of  a  secret  for  making  a  medicine  against  a  son  of  the  in- 
ventor, holding  it  in  trust  for  his  brothers  and  sisters.  Bryson  v. 
Whitehead,  1  Sim.  &  Stu.  74;  Green  v.  Folgham,  lb.  398. 

In  a  more  recent  case,  Morison,  the  inventor  and  sole  proprietor  of 
a  medicine,  for  which  no  patent  had  been  obtained,  entered  into  part- 
nership with  Moat,  to  whom  he  communicated  the  secret  of  making 
the  medicine,  but  did  not  make  the  secret  a  parj  of  the  assets  of  the 
partnership,  and  reserved  it  to  himself  as  against  all  other  persons, 
and  Moat  covenanted  not  to  reveal  it  to  any  person  whomsoever ;  by 
subsequent  agreement  Morison's  sons  and  a  son  of  Moat  were  ad- 
mitted as  partners  in  the  business ;  and  the  secret  was  surreptitiously 
obtained  from  Moat  by  his  son.  After  the  death  of  both  the  origi- 
nal parties,  on  a  bill  brought  by  Morison's  sons,  who  were  also  legatees 
of  the  secret,  against  Moat's  son,  Vice-Chancellor  Turner,  in  an 
elaborate  judgment  reviewing  all  the  English  authorities,  granted  an 
injunction  restraining  the  defendant  from  using  the  secret  in  any 
manner  in  compounding  the  medicine;  and  refused  to  restrain  him 
from  communicating  the  secret,  simply  for  want  of  any  allegation 
or  evidence  of  an  intention  to  communicate  it.  Morison  v.  Moat,  9 
Hare,  241.  The  defendant  appealed;  but  the  order  was  affirmed;  and 
Lord  Cranworth,  delivering  the  opinion  of  the  court  of  appeal, 
said:  "The  principles  that  were  argued  in  this  case  are  principles 
really  not  to  be  called  in  controversy.  There  is  no  doubt  whatever, 
that  when  a  party  who  has  a  secret  in  trade  employs  persons  under 
a  contract  express  or  implied,  or  under  duty  express  or  implied,  those 
persons  cannot  gain  the  knowledge  of  the  secret  and  then  set  it  up 
against  their  employer."     21  L.  J.   (N.  S.)   Ch.  248.     .     .     . 

The  contract  between  Peabody  and  Norfolk  was,  on  the  part  of 
Norfolk,  to  serve  Peabody  as  engineer  in  his  jute  factory  so  far 
as  required,  and  particularly  in  the  construction  and  running  of  the 
machinery,  and  not  to  give  any  third  person  information  directly  or 
indirectly  in  regard  to  any  portion  of  the  machinery,  but  to  "consider 
all  of  said  machinery  as  sacred  to  be  used  only  for  the  benefit  of 
said  Peabody  or  his  assigns,  and  by  all  means  in  his  power  prevent 
other  persons   from  obtaining  any  information  in  regard  to  it  such 


Cll.    2)  NEGATIVE    CONTRACTS.  71 

as  would  enable  them  to  use  it;"  and,  on  the  part  of  Peabody,  to  pay 
Norfolk  an  annual  salary  "in  full  compensation  for  the  above  de- 
scribed services,"  provided  he  should  render  his  services  acceptable 
to  Peabody  as  he  had  theretofore,  and  Peabody  or  his  assigns  should 
continue  the  business  of  manufacturing  jute  goods.  The  "above 
described  services"  clearly  include,  not  only  the  affirmative  promise 
to  serve  as  an  engineer,  but  the  negative  promise  not  to  disclose  the 
secret,  and  to  do  his  best  to  conceal  it ;  and  the  salary  is  a  legal  and 
sufficient  consideration  for  all  the  agreements  of  Norfolk. 

The  plaintiffs  do  not  ask  for  specific  performance  of  Norfolk's 
promise  to  serve  as  engineer.  It  is  therefore  unnecessary  to  consider 
whether  that  promise  is  limited  in  point  of  time  or  determinable  at 
pleasure,  or  is  capable  of  being  specifically  enforced.  Whatever  may 
be  the  limit  or  effect  of  his  obligation  to  serve,  he  is  bound  by  his  con- 
tract never  to  disclose  the  secret  confidentially  imparted  to  him  during 
the  term  of  his  actual  service.  And  this  part  of  his  agreement  may 
be  specifically  enforced  in  equity,  even  if  the  other  part  could  not. 
Lumley  v.  Wagner,  1  De  Gex,  Macn.  &  Gord.  604. 

The  bill  alleges  that  the  invention  and  the  process  of  manufacture 
have  been  kept  secret,  and  that  the  secret  is  the  property  of  the 
original  plaintiff  and  of  great  value  to  him,  and  was  confidentially 
imparted  to  Norfolk ;  and  on  demurrer  these  allegations  must  be  taken 
to  be  true.  ,  Although  the  process  is  carried  on  in  a  large  factory,  the 
workmen  may  not  understand  or  be  intrusted  with  the  secret,  or  may 
have  acquired  a  knowledge  of  it  upon  the  like  confidence.  A  secret 
of  trade  or  manufacture  does  not  lose  its  character  by  being  confi- 
dentially disclosed  to  agents  or  servants,  without  whose  assistance 
it  could  not  be  made  of  any  value.  Even  if,  as  is  argued  in  sup- 
port of  the  demurrer,  the  process  is  liable  to  be  inspected  by  the  as- 
sessor of  internal  revenue  or  other  public  officer,  the  owner  is  not  the 
less  entitled  to  protection  against  those  who  in,  or  with  knowledge  of 
violation  of  contract  and  breach  of  confidence,  undertake  to  dis- 
close it  or  to  reap  the  benefit  of  it.  The  danger  of  divulging  the 
secret  in  the  course  of  a  judicial  investigation  affords  in  our  opinion 
no  satisfactory  reason  why  a  court  of  equity  should  refuse  all  remedy 
against  the  wrongdoers. 

The  supplemental  bill  alleges,  and  the  demurrer  admits,  that  Cook, 
with  notice  (jf  tlie  relations  between  Peabody  and  Norfolk,  has  made 
arrangements  to  have  the  secret  coniniunicatcd  to   him  by   Norfolk, 


72  SPECIFIC    PEEFOEMANCE    OF  CONTEAOTS  (Part    1 

and  together  with  him  to  use  it  for  their  own  benefit.  Upon  such  a 
state  of  facts,  Cook  has  no  better  equity  than  Norfolk. 

The  executors  of  the  will  of  the  original  plaintiff  succeed  to  his 
rights,  and  appear  on  the  allegations  of  the  bills  to  be  entitled  to  the 
relief  prayed  for.     Morison  v.  Moat,  above  cited. 

Demurrer  overruled. 


DALY  V.  SMITH 
(New  York  Superior  Court,  1874,   38  N.   Y.   Sup.   Ct.   Rep.    158.) 

Fre;e;dman,  J.  This  is  a  motion  on  the  part  of  the  plaintiff  for 
the  continuance,  during  the  pendency  of  the  action,  of  an  injunction, 
heretofore  granted,  preliminarily  restraining  the  defendant,  Fanny 
Morant  Smith,  from  performing  as  an  actress  upon  the  stage  of  the 
Union  Square  Theater. 

The  papers  on  which  the  motion  is  based  show,  among  other  things, 
that  on  February  11,  1874,  a  contract  in  writing  was  entered  into 
between  the  plaintiff  and  Fanny  Morant  Smith,  by  which  the  latter 
covenanted  and  agreed,  among  other  things,  to  act,  to  the  best  of  her 
ability,  in  theatrical  performances,  on  the  stage  of  plaintiff's  theater, 
during  the  seasons  of  1874,  1875,  and  1876,  all  such  parts  and  charac- 
ters as  the  plaintiff  might  direct,  and  that  she  would  not  act  at  any 
other  theater  or  place  in  the  city  of  New  York,  from  the  day  of  the 
date  of  said  contract  until  the  determination  thereof,  without  the 
written  consent  of  the  plaintiff'.  The  plaintiff  then  avers  a  breach 
of  said  contract  on  her  part,  by  accepting  an  engagement  to  play  dur- 
ing the  ensuing  season  of  the  Union  Square  Theater,  and  allowing  her 
appearance  at  that  place  to  be  publicly  advertised,  and  after  setting 
forth  various  alleged  equities,  which  it  is  claimed,  on  his  part,  en- 
titled him  to  an  injunction,  and  which  will  be  noticed  hereafter,  he 
prays  that  she  may  be  enjoined  from  continuing  the  breach.  The  sole 
object  of  the  action,  in  which  her  husband  has  been  joined  as  a  party 
defendant,  is  to  have  her  thus  restrained  by  the  decree  of  this  court, 
and  it  is  clear,  therefore,  that  unless  an  action  for  that  purpose  alone 
can  be  maintained,  the  court  is  without  jurisdiction  to  restrain  her 
during  the  pendency  thereof. 


Ch.    2)  XEGATIVE     COXTRACTS.  73 

The  very  first  question  to  be  considered,  therefore,  is  whether  the 
action  will  lie  as  brought.  It  is  conceded,  by  both  sides,  that  the  action 
could  not  be  maintained  for  the  strict  performance  of  the  whole 
contract,  if  it  had  been  brought  in  that  form,  that  in  such  case  there 
would  be  no  power  in  the  court  to  compel,  either  by  order  or  final 
decree,  the  defendant  to  act. 

The  question,  whether  or  not  a  court  of  equity  will  interfere  by 
injunction  to  prevent  a  breach  of  a  contract  for  personal  services, 
or  whether  the  complainant  must  look  to  his  damages  at  law  as  his 
sole  redress,  has  been  frequently,  and  on  several  occasions  quite  elab- 
orately, discussed  both  in  England  and  in  this  country.  On  a  cursory 
reading  the  authorities  may  seem  somewhat  conflicting,  but  a  careful 
perusal  of  them  in  the  light  of  the  facts  before  the  court  on  the  several 
occasions,  can  leave  no  doubt  as  to  the  existence  of  the  power.     .     . 

In  the  still  later  case  of  Lumley  v.  Wagner  (1  De  Gex,  MacN.  & 
G.  Ch.  604),  decided  in  1852,  in  which  the  plaintifif  prayed  that  the 
defendant  Johanna  Wagner,  who  had  contracted  to  sing  and  perform 
at  his  theater,  and  not  to  use  her  talents  at  any  other,  might  be  re- 
strained from  signing  or  performing  at  another  theater  in  violation 
of  her  contract.  The  Lord  Chancellor  re-examined  the  jurisdictional 
question  involved  at  great  length,  upon  both  principle  and  authority, 
discussing  and  reviewing  many  cases,  and  he  concluded  by  saying  that 
he  wished  it  to  be  distinctly  understood  that  he  entertained  no  doubt 
whatever,  that  the  point  of  law  had  been  properly  decided  in  the  court 
below,  where  the  jurisdiction  had  been  assumed  and  exercised.  He 
also  entered  into  a  minute  examination  of  the  facts  of  the  case,  and 
upheld  the  injunction  on  the  merits  as  well  as  on  the  point  of  law 
raised.  In  the  course  of  his  remarks,  he  expressly  overruled  Kemble 
V.  Kean,  and  Kimberly  v.  Jennings. 

The  criticism  of  Lumley  v.  Wagner,  in  which  Lord  Selborne,  L.  C, 
indulged  in  Wolverhampton  &  Walsall  Railway  Co.  v.  London  & 
Northwestern  R.  R.  Co.  (decided  in  1873,  a-nd  reported  in  16  L.  R. 
Equity  Cases,  433),  is  not  an  indication  that  the  existence  of  the 
power  contended  for  will  ever  be  questioned  by  the  courts  of  England, 
hereafter.  In  that  case,  the  complainants  sought  by  means  of  an  in- 
junction to  indirectly  compel  the  defendant  to  use  a  certain  railway 
line  as  they  had  agreed.  The  defendants  insisted  that  as  the  bill  sought 
to  restrain  the  breach  of  a  particular  clause  of  an  agreement  of  which 
as  a  whole,  the  court  will  not  enforce  .si)ecific  performance,  and  there 


74  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    3 

being  no  negative  stipulation  in  the  agreement,  capable  of  being  isolat- 
ed, so  as  to  form  a  distinct  contract,  as  in  Lumley  v.  Wagner,  the 
court  could  not  interfere,  but  should  leave  the  parties  to  their  remedy 
at  law.     It  was  in  reply  to  this  claim  which  involved  a  concession  of 
the  existence  of  the  jurisdiction  in  case  of  the  presence  of  a  negative 
clause,  that  Lord  Selborne,  assuming  that  in  Lumley  v.  Wagner,  the 
Lord  Chancellor  had  placed  his  decision  solely  upon  the  presence  of 
the  negative  clause,  made  the  remark  that  in  that  case  the  jurisdiction 
of  the  court  had  been  enlarged  on  a  highly  artificial  and  technical 
ground,  and  that  it  was  the  safer  and  the  better  rule  to  look  in  all  such 
cases  to  the  substance  and  not  to  the  form.     "If,"  said  he,  "the  sub- 
stance of  the  agreement  is  such  that  it  would  be  violated  by  doing 
the  thing  sought  to  be  prevented,  then  the  question  will  arise  whether 
this  is  the  court  to  come  to  for  a  remedy.     If  it  is,  I  can  not  think  that 
ought  to  depend  on  the  use  of  a  negative  rather  than  an  affirmative 
form  of  expression.     If,  on  the  other  hand,  the  substance  of  the  thing 
is  such,  that  the  remedy  ought  to  be  sought  elsewhere,  then  I  do  not 
think  that  the  forum  ought  to  be  changed  by  the  use  of  a  negative  rath- 
er than  an  affirmative.    "Acting  upon  the  rule  thus  laid  down,  and  com- 
ing to  the  conclusion  that  the  complainants  had  a  substantial  equity, 
Lord   Selborne  assumed   jurisdiction,  though  there  was   no   negative 
clause,  and  overruled  defendants  demurrer  to  the  complaint.     .     .     . 

The  authorities  so  far  considered  show  conclusively  that  in  England, 
at  least,  the  jurisdiction  of  courts  of  equity  over  suits  like  the  one  at 
bar,  is  now  too  firmly  established  to  be  again  shaken.  Nor  has  such 
jurisdiction  been  seriously  questioned  in  this  State.     .     .     . 

And  in  the  recent  case  of  DePol  v.  Sohlke  (7  Rob.  280),  Mr.  Justice 
Jones  assumed  throughout  that  the  right  to  issue  an  injunction  to 
prevent  the  breach  of  a  covenant  to  render  personal  services,  on  the 
ground  that  the  performance  of  the  act  would  produce  irreparable 
damages,  could  not  well  be  questioned.  But  he  denied  the  motion 
for  an  injunction  on  the  ground  that  the  plaintiffs  did  not  then  have, 
and  were  not  likely  to  have  for  some  time  to  come,  an  establishment 
in  active  operation,  that,  therefore,  no  custom  could,  for  the  tmie 
being,  be  withdrawn  from  them,  and  that  consequently,  no  damages 
were  resulting,  or  could  be  anticipated  to  result,  for  some  time  to  come, 
from  the  act  which  plaintiffs  sought  to  enjoin. 

So.  upon  principle,  can  I  conceive  of  no  reason  why  contracts  for 
theatrical  performances   should   stand  upon  a  different    footing  than 


Ch.    2)  NEGATIVE    CONTEACTS.  75 

Other  contracts  involving  the  exercise  of  intellectual  faculties;  why 
actors  and  actresses  should  by  the  law  of  contracts,  be  treated  as  a 
specially  privileged  class,  or  why  theatrical  managers  who  have  to  re- 
ly upon  their  contracts  with  performers  of  attractive  talents  to  carry 
on  the  business  of  their  theaters,  should,  with  the  large  capital  neces- 
sarily involved  in  their  business,  be  left  completely  at  the  mercy  of 
their  performers.  On  the  contrary,  I  am  of  the  opinion  that  actors 
and  actresses,  like  all  other  persons,  should  be  held  to  a  true  and  faith- 
ful performance  of  their  engagements,  and  that  whenever  the  court 
has  not  proper  jurisdiction  to  enforce  the  whole  engagement,  it  should, 
like  in  all  other  cases,  operate  to  bind  their  consciences,  at  least  as 
far  as  they  can  be  bound,  to  a  true  and  faithful  performance.  As 
pointed  out  by  Judge  J.  F.  Daly,  in  Hayes  v.  Willio  (11  Abb.  Pr.  N. 
S.  167),  and  his  remarks  upon  this  point  are  entitled  to  respect,  not- 
withstanding the  fact  that  his  decision  has  been  reversed  upon  another 
point,  the  resort  to  actions  at  law  for  damages  for  a  sudden  desertion 
of  the  performers  in  the  middle  of  their  season,  will,  in  most  cases 
fail  to  afford  adequate  compensation;  and  it  is  not  always  that  the 
manager  is  deprived  of  his  means  of  carrying  on  his  business,  but  that 
his  performers,  by  carrying  their  services  to  other  establishments, 
deprive  him  of  the  fruits  of  his  diligence  and  enterprise,  increase 
the  rivalry  against  him,  and  cause  him  irreparable  injury.  If,  there- 
fore, such  a  manager  comes  to  a  court  of  equity  and  makes  proof  of 
these  facts  anid  circumstances,  showing,  also,  that  the  contract  upon 
which  he  relies  is  a  reasonable  one,  that  he  is  in  no  wise  to  blame  for 
its  breach  by  the  defendant,  and  that  he  has  no  adequate  remedy  at 
law,  upon  what  principle  of  justice  or  of  common  sense  is  he  to  be 
told  that  he  must,  nevertheless,  seek  his  remedy  at  law,  and  take  the 
chance  by  proving  his  damages  by  legal  evidence  before  a  jury.  Of 
what  benefit  would  even  a  verdict  be  to  him  in  case  the  defendant 
is  wholly  insolvent?  Is  it  not  an  old  and  fairly  settled  principle  of 
equity  jurisprudence,  that  just  because  there  is  in  such  a  case  no 
adequate  remedy  at  law,  it  is  the  office  and  the  duty  of  equity  to  step 
in  to  prevent  a  failure  of  justice?  In  the  language  of  Lord  Chancellor 
St.  Leonards,  a  judge  would  desert  his  duty  who  did  not  act  up  to 
what  his  predecessors  have  handed  down  as  the  rule  for  his  guidance 
in  the  administration  of  such  an  equity. 

Suffice   it,  therefore,  to   say,  that   up(jn   i)rincii)le   as   well   as   upon 
authority,  I  am  fully  persuaded  that  this  court  does  possess  the  power 


76  SPECIFIC   PEEFOEMANCE  OF  CONTEACTS  (Part    1 

and  jurisdiction  which  has  been  invoked  by  the  plaintiff.  At  the  same 
time,  I  am  well  aware  that  there  is  no  branch  of  equitable  jurisdiction 
which  requires  more  discretion  in  the  exercise  of  it,  than  the  one  that 
has  been  here  considered.  It  remains,  therefore,  to  be  seen  whether 
the  plaintiff  shall  have  the  benefit  of  it  on  the  merits  of  his  case. 

The  plaintiff  shows  that  the  defendant,  Fanny  Morant  Smith,  is  a 
distinguished  actress  and  a  great  artistic  acquisition,  both  in  name  and 
dramatic  service,  to  any  theater;  that,  therefore,  for  several  seasons 
past  he  considered  it   important   to   secure   her  professional   services 
for  his  theater,  and  did  secure  them,  that  the  last  contract  for  such 
seasons  expired  in  the  month  of  June  last ;  that  before  the  expiration 
of  that  contract,  to  wit,  on  the  11th  of  February  last,  the  new  contract 
was  entered  into  under   which   the  present   controversy   has   arisen ; 
that  the  last  named  contract  covers  the  seasons  of  1874,  1875  and  1876, 
each  season  to  commence  on  or  about  September  1  of  each  respective 
year,  and  to  terminate  on  or  about  June  15  of  the  following  year,  and 
that  by  it  Fanny  Morant  Smith,  in  consideration  of  a  weekly  salary 
of  one  hundred  and  thirty  dollars,  to  be  paid  to  her  during  the  first 
season,  and  a  like  salary  of  one  hundred  and  thirty-five  dollars  to  be 
paid  to  her  during  the  second  and  third  seasons,  payment  to  be  made 
on  Monday,  at  noon,  of  each  week,  bound  herself  to  act,  to  the  best  of 
her  ability,  in  the  performances  to  be  given  during  the  said  seasons, 
all  such  parts  and  characters  as  the  plaintiff  might  direct,  and  to  con- 
form to  and  faithfully  obey  certain  rules  of  plaintiff's  theater,  referred 
to  in,  and  made  part  of  said  contract,  and  not  to  act  at  any  other  theater 
in  the  city  of  New  York,  from  the  date  of  said  contract  until  the  de- 
termination thereof,  without  the  written  consent  of  the  plaintiff.     The 
contract  also  shows  that  each  week  is  to  include  such  rehearsals  as 
may  be  ordered  by  the  plaintiff,  without  any  extra  payment  therefor. 
The  plaintiff  further  shows  that  he  made  such  contract,  as  the  de- 
fendant Fanny  Morant  Smith  well  understood  at  the  time,  because 
of  his  desire,  first  to  secure  her  dramatic  service,  secondly  her  name, 
and  thirdly  to  prevent  her  acting  elsewhere  in  New  York  without  his 
permission,  and  obtaining  eclat  for  a  rival  theater;  that  the  latter  is 
always  an  essential  reason  with  managers,  and  is  well  understood  by 
every  actor  and  actress,  as  it  was  understood  by  the  defendant;  that 
relying  on  said  contract,  he  announced  her  in  all  the  daily  papers  in  the 
city  of   New  York,  and  widely  throughout  the  United   States,   as  a 


oil.    2)  NEGATIVE    CONTRACTS.  77 

member  of  his  company  for  this  year's  season,  to  commence  August 
25 ;  that  a  rehearsal  for  the  performance  to  be  given  on  that  day  was 
ordered  for  Saturday,  August  15.  that  she  was  notified  to  attend  the 
same,  but  that  she  refused ;  that  he  has  substantially  selected  and  pre- 
pared those  plays  which  are  to  be  presented  up  to  the  close  of  the 
said  season,  and  in  doing  so  has  relied  on  her  services,  and  has  man- 
agerially  distributed  and  prepared  many  parts  for  her  to  perform 
therein;  but  that  in  violation  of  her  contract  and  against  plaintiff's 
express  prohibition,  she  entered  into  an  engagement  to  play  durino- 
the  ensuing  season  at  the  Union  Square  Theater,  a  rival  to  plaintiff's 
rheater.  and  that  with  her  consent  she  is  publicly  announced  to  appear 
there.  And  finally  the  plaintiff  shows  that  it  will  be  impossible  to 
replace  her  by  any  other  artist  at  this  date,  inasmuch  as  engagements 
are  made  in  the  spring;  that  he  will  therefore  be  irreparably  damaged 
and  injured  in  his  business,  not  only  by  her  departure,  but  also  by  her 
appearance  and  performance  at  the  rival  establishment  and  that  a 
computation  of  the  damage  thus  resulting  to  him  in  loss  of  receipts 
and  otherwise  will  be  utterly  impossible  in  an  action  at  law. 

None  of  these  allegations  have  been  denied,  or  attempted  to  be 
denied,  by  the  defendant,  Fanny  Morant  Smith,  except  the  allegation 
that  the  plaintiff  has  selected  parts  for  her,  and  in  respect  to  that, 
she  only  avers  generally,  that  she  has  no  knowledge,  and  does  not 
believe  the  fact  to  be  as  stated  by  the  plaintiff,  which  can  not  be  held  to 
amount  to  a  denial,  especially  as  she  admits  to  have  been  summoned 
to  a  rehearsal,  and  to  have  refused  not  only  to  attend,  but  even  to 
look  at  the  role  assigned  to  her.  Nor  has  the  force  of  any  of  the  said 
allegations  of  the  plaintiff  been  weakened  by  any  allegation  on  her 
part,  unless  it  be  by  the  allegations  that  she  notified  the  plaintiff,  some 
time  after  the  execution  of  the  contract,  of  her  intention  and  desire 
to  cancel  the  same,  and  that  she  is  pecuniarily  able,  to  the  extent  of 
twenty  thousand  dollars,  in  real  estate,  to  respond  in  any  damages  he 
may  recover  against  her  at  law.  Upon  the  whole  case,  as  made  by 
the  plaintiff,  the  facts  thus  averred  by  her,  even  if  true,  are  quite  un- 
important. So,  when  the  contract  is  scrutinized  in  its  entirety,  and 
with  due  regard  to  its  nature  and  the  situation,  and  the  prior  dealings 
of  the  parties,  nothing  can  be  found  in  it  which  could  be  construed  into 
a  hardship  upon  her.  Even  the  fact  that  the  prohibition  runs  from 
the  date  of  the  contract,  and  not   from  the  commencement  of  the 


78  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    1 

regular  season  of  1874-1875,  is  not  an  unreasonable  circumstance  in 
this  case,  however  unreasonable  and  inequitable  it  might  be  in  others. 
It  has  been  conceded  by  both  sides,  that  the  defendant,  Fanny  Morant 
Smith,  is  not  only  a  great  actress,  but  that  she  is  also  a  shrewd  lady 
of  great  business  capacity,  and  mature  age  and  judgment,  and  it  is 
therefore  safe  to  assume  that,  in  the  light  of  her  past  experience  with 
the  plaintiff,  she  made  the  best  bargain  for  herself  that  could  be  got 
under  the  circumstances.  Nor  does  she  claim  that  the  contract  is 
void  on  grounds  of  public  policy,  as  being  in  restraint  of  trade.  On 
the  contrary,  the  learned  counsel  who  represents  her,  admits  that  such 
is  not  the  fact. 

The  plaintiff  has,  therefore,  made  a  case  as  strong  as  Lumley  v. 
Wagner,  in  all  respects,  and  in  some  respects  even  stronger,  and  he  is 
entitled  to  his  injunction,  unless  the  defendant,  Fanny  Morant  Smith, 
establishes  an  affirmative  defense.     .     .     . 

Upon  full  consideration  of  all  the  questions  arising  in  this  case,  as 
presented  by  the  affidavits  of  the  parties,  I  am  entirely  satisfied,  not 
only,  that  the  plaintiff  has  made  out  a  case  which  calls  strongly  for  the 
interposition  of  the  equity  powers  of  this  court,  but  also  that  the  de- 
fendant, Fanny  Morant  Smith  has  no  defense  on  the  merits.  This 
brings  me  to  the  last  question  involved.  The  parties  evidently  fore- 
saw that  differences  might  arise  between  them  during  the  life  of  the 
contract,  and  so  careful  were  they,  that  they  provided  even  for  the 
contingency  which  has  arisen  in  this  case.  The  contract  says,  that  if 
the  defendant,  Fanny  Morant  Smith,  should  refuse  to  fulfill  her  part, 
and  should  attempt  to  perform  at  any  other  theater  before  the  termi- 
nation of  her  agreement  with  the  plaintiff,  the  plaintiff  may  by  legal 
process  or  otherwise,  restrain  her  from  so  performing,  on  payment  to 
her  during  such  restraint  of  a  sum  equal  to  one-quarter  of  the  salary 
to  be  paid  to  her  under  the  contract  in  lieu  of  the  said,  or  any  other, 
salary  under  the  agreement  during  the  period  covered.  I  refrained 
from  noticing  this  clause  at  an  earlier  stage,  because  parties  can  not 
confer  jurisdiction  by  stipulation.  But  as  the  jurisdiction  exists,  as 
I  have  already  shown,  wholly  irrespective  of  the  clause,  it  was  com- 
petent for  the  parties  to  agree  upon  the  terms  of  restraint  in  a  proper 
case,  and  as  this  is  a  proper  case  for  an  injunction,  irrespective  of  said 
clause,  I  have  no  inclination  to  interfere  with  the  arrangement  which 
the  parties  saw  fit  to  make.  The  plaintiff  evidently  considered  that, 
though  in  case  of  disagreement,  he  could  not  compel  the  defendant, 


Ch.    2)  XEGATIVE     CONTRACTS. 


1)1 


(I 


Fanny  Alorant  Smith  to  act,  it  was  worth*  about  thirty-three  dollars 
a  week  to  him  to  keep  her  from  constituting  an  attraction  for  a  rival 
establishment,  and  she,  having  agreed  to  it.  has  no  cause  of  complaint, 
for  her  restraint  is  not  predicated  by  the  court  upon  the  existence  of  the 
clause.  By  the  terms  of  the  contract,  restraint  and  payment  are 
mutually  dependent  on  each  other,  and  the  restraint  is  not  to  extend 
beyond  the  limits  of  the  city  of  New  York,  and  a  contract  to  this  effect 
is  therefore  presented,  which  the  court  can  completely  and  effectually 
enforce.  No  previous  payment  or  tender  is  necessary  to  the  main- 
tenance of  the  action. 

The  motion  of  the  plaintiff  for  the  continuance  of  the  injunction 
during  the  pendency  of  the  action,  is  therefore  granted,  with  ten 
dollars  costs,  but  on  condition  that  the  plaintitt  pay  to  the  defendant, 
Fanny  Morant  Smith,  during  such  continuance,  one-quarter  of  the 
salary  to  which  she  would  be  entitled  under  the  contract  in  case  of 
performance,  such  payment  to  be  made  to  her,  or  her  order,  as  she 
may  direct,  in  weekly  installments,  payable  on  Monday  of  each  week, 
and  that  he  also  pay  to  her  or  her  order,  forthwith,  such  sum  as  may 
have  accrued  since  the  granting  of  the  preliminary  injunction  con- 
tained in  the  order  to  show  cause  herein. 


KIRCHNER  &  CO.  v.  GRUBAN. 

(Supreme  Court  of  Judicature,   (1901)   1  Ch.  Div.  413.) 

Eve,  J.  It  is  admitted,  or  conceded,  I  think  I  may  say,  by  counsel 
for  the  plaintiffs  that  if  this  were  a  mere  affirmative  agreement  by 
the  defendant  to  serve  the  plaintiffs  until  July  1,  1910,  and  he  had 
refused  to  continue  that  service,  the  Court  would  not  according  to  the 
well-settled  practice,  interfere  by  an  injunction  to  compel  him  to 
render  his  services  to  the  plaintiffs  down  to  the  date  at  which  in  the 
ordinary  course  the  engagement  of  service  would  come  to  an  end. 
But  it  is  urged  here  that  it  is  not  merely  an  affirmative  covenant,  but 
that  there  is  in  this  document  a  negative  stipulation  wliicli  the  Court, 
according  to  the  practice,  can  enforce  by  restraining  the  defendant 
in  the  terms  of  the  covenant.  The  negative  stipulation  is  to  be  found 


80  SPECIFIC    PERFORMANCE    OF  CONTRACTS  (Part    1 

ill  clause  7  of  the  agreement.  "Mr.  Gruben" — that  is  the  defendant — " 
agrees  under  a  penalty  of  20,000  marks  to  remain  in  his  position  and 
not  to  give  notice  before  July  1,  1910." 

Now  it  is  said  that  what  he  has  done  is  a  breach  of  his  agreement 
not  to  terminate  the  service  before  July  1,  1910,  and  if  the  matter  were 
entirely  free  from  authority  that  would  be  an  argument  to  which  I 
think  I  should  have  had  to  give  very  much  more  weight  than  I  am  able 
to  do  in  the  present  state  of  the  authorities.     The  question  as  to  the 
practice  of  .the  Court  to  enforce  affirmative  covenants  of  this  sort  was 
dealt  with  and  finally  disposed  of,  at  any  rate   for  the  present,  by 
the  case  of  Whitwood  Chemical  Co.  v.  Hardman  (1891)  2  Ch.  416, 
and  at  a  later  date  the  principle  upon  which  that  and  similar  cases  had 
been  determined  came  up  for  consideration  before  the  late  Kekewich 
J.  in  the  case  to  which  I  am  about  to  refer,  the  case  of  Davis  v.  Fore- 
man (1894)  3  Ch.  654,  655,  657.     There  the  form  of  the  agreement 
between  the  employer  and  the  employed  was  this :     "The  employer 
hereby  agrees  with  the  manager  that  he  will  not,  except  in  the  case  of 
misconduct  or  a  breach  of   this  agreement,   require  the   manager  to 
leave  his  employ  and  determine  this  agreement  during  such  period  that 
he  shall  draw  from  the  said  business  £15,  each  and  every  month." 
There  was  an  agreement  in  the  negative  by  the  employer  that  so  long 
as  a  certain  state  of  things  continued  to  exist  he  would  not  give  notice 
to  the  employee  determining  the  engagement.     Kekewich,  J.,  having 
heard  all  that  was  to  be  said  on  behalf  of  the  plaintiff,  who  in  that 
case  was  the  employee  seeking  to  restrain  the  employer  from  acting 
upon  the  notice,  gave  his  judgment,  in  which  he  arrives  at  this  con- 
clusion, that  though  in  form  the  stipulation  or  agreement  is  negative, 
in  substance  it  is  really  affirmative  and  positive,  that  an  agreement  not 
to  give  notice  to  determine  his  employment  is   for  all  practical  pur- 
poses an  agreement  to  continue  the  employment,  and  having  come  to 
that  conclusion  he  says :  "Having  regard  to  the  principle  expounded  by 
the  Court  of  Appeal  in  Whitwood  Chemical  Co.  v.  Hardman  (1891) 
2  Ch.  416,  and  recognized  again  in  the  case  of  Ryan  v.  Mutual  Tontine 
Westminster  Chambers  Association   (1893)    1   Ch.   116,  which  is  not 
directly  in  point,  what  ought  I  to  do  here,  in  dealing  with  a  covenant 
or  stipulation  which,  as  1  have  said,  though  negative  in  form  is  posi- 
tive in  substance?     There  is  a  clause  in  the  agreement  that  the  em- 
ployer will  not,  except  in  the  case  of  misconduct  or  a  breach  of  the 
agreement,  require  the  manager  to  leave  his  employ — in  other  words, 


oil.    2)  NEGATIVE    CONTRACTS.  81 

give  him  notice  to  quit.  That  is,  to  my  mind,  distinctly  equivalent  to  a 
stipulation  by  the  employer  that  he  will  retain  the  manager  in  his  em- 
ploy. It  is  only  the  form  that  is  negative.  If  the  Court  comes  to  the 
conclusion  that  that  is  really  the  substance  of  the  agreement  (which, 
being  an  agreement  of  service,  cannot  be  specifically  enforced),  is  it 
right,  having  regard  to  the  line  the  authorities  have  taken,  to  say 
that  merely  because  the  agreement  is  negative  in  form  an  injunction 
ought  to  be  granted  ?  To  my  mind,  I  should  be  going  distinctly  against 
the  last  decision  in  the  Court  of  Appeal  if  I  were  to  apply  the  doctrine 
of  Lumley  v.  Wagner  (1852)  1  D.  M.  &  G.  604,  wdiicli  is  not  to  be 
extended,  to  a  case  of  this  character." 

It  seems  to  me  that  every  word  of  that  judgment  is  applicable  to 
the  present  case,  and  that  I  should  he  disregarding  an  authority  which 
is  certainly  binding  upon  me  if  I  were  to  hold  that  merely  because  Mr. 
Gruban  has  entered  into  a  contract  not  to  terminate  the  engagement 
before  July  1,  1910,  I  could  grant  an  injunction  the  effect  of  which 
would  be  as  against  him  to  order  specific  performance  of  an  agree- 
ment to  continue  to  serve  the  plaintiffs  down  to  July  1,  1910.  So  that 
on  the  first  part  of  the  motion  I  hold  that,  apart  from  all  other  con- 
siderations, the  plaintiffs  would  not  be  entitled  to  the  order  for  which 
they  ask,     .     .     . 


DOCKSTADER  v.  REED. 

(Supreme  Court,  Appellate  Division,  New  York,  1907.   121  N.  Y.  App.  Div. 

846;    106  N.  Y.  Supp.   795.) 

Houghton,  J.  The  plaintiff  is  the  proprietor  of  a  minstrel  troupe, 
and  on  the  19th  day  of  March,  1907,  the  defendant  contracted  by  writ- 
ten agreement  with  him  at  a  stipulated  salary  per  week  to  sing  and 
play  until  the  end  of  the  season  of  1909.  The  defendant  entered  upon 
his  employment  and  continued  until  September,  1907,  when  he  aban- 
doned his  contract,  claiming  that  his  health  was  such  that  he  could  not 
continue  singing  and  traveling  about  the  country  and  parading  the 
streets  in  inclement  weather.  The  record  contains  an  affidavit  by  his 
physician  that  to  continue  in  such  work  and  expose  himself  to  varying 
climate  throughout  the  country  would  greatly  endanger  defendant's 
1  Eq.— 6 


82  SPECIFIC   PEEFOEMANCE    OF  CONTEACTS  (Part    1 

health  which  is  not  robust.  The  part  to  which  defendant  was  cast  in 
plaintifif's  troupe  was  a  bass  singer  in  a  ([uartet,  rendering  several  songs 
during  the  performance.  The  court  granted  an  injunction  during  the 
pendency  of  the  action,  restraining  the  defendant  from  rendering  any 
services  to  any  other  person  than  the  plaintifif  or  giving  any  theatrical 
performance  in  public  as  an  actor. 

The  contract  which  the  defendant  signed  is  the  usual  unique  one 
which  the.atrical  managers  often  demand  from  actors  which  they  em- 
ploy, and  in  it  the  defendant  confessed  that  the  services  which  he  was 
to  render  were  "special,  unique,  and  extraordinary,"  and  admitted  that 
he  could  not  be  replaced,  and  agreed  that  in  the  event  of  its  breach 
the  plaintifif  would  sufifer  irreparable  injury,  which  could  not  be  as- 
certained or  estimated  in  an  action  at  law,  and  consented  that  an  in- 
junction might  be  issued  against  him  restraining  him  from  rendering 
services  for  any  other  person.  This  confession  and  defendant's  own 
estimate  of  himself  is  the  only  proof  in  the  case  that  his  services  were 
unique  and  that  he  could  not  be  replaced.  The  contract  gave  the  plain- 
tiiT  the  right  to  discharge  the  defendant,  without  recourse,  if  his  ser- 
vices were  unsatisfactory,  and  also  the  absolute  right  of  discharge, 
without  cause,  upon  two  week's  notice ;  and  it  is  quite  improbable  that 
a  bass  singer  in  a  minstrel  quartet  cannot  be  found  to  take  defendant's 
place.  Notwithstanding  the  agreement  of  the  defendant,  we  think 
the  facts  did  not  warrant  the  granting  of  an  injunction.  Parties  to 
an  agreement  cannot  contract  that  courts  will  exercise  their  functions 
against  or  in  favor  of  themselves.  Whether  or  not  a  court  will  so 
exercise  its  powers  is  for  the  court  itself  to  determine. 

While  equity  will  often  restrain  an  actor  under  contract  to  perform 
for  one  and  not  to  perform  for  another,  or  from  performing  for  an- 
other during  the  period  of  the  contract,  an  application  for  equitable 
relief  is  addressed  to  the  sound  discretion  of  the  court,  and  v/ill  not  be 
granted  where  the  party  seeking  relief  is  not  specifically  bound  by 
the  contract,  so  that  the  obligations  are  reciprocal  and  enforceable. 
Lawrence  v.  Dixey,  119  App.  Div.  295,  104  N.  Y.  Supp.  516.  Whether 
equity  will  intervene  to  restrain  by  injunction  the  violation  of  a  re- 
strictive covenant  in  relation  to  personal  services  depends  in  large 
measure  upon  whether  a  substitute  for  the  employee  can  readily  be 
obtained,  and  whether  such  substitute  will  substantially  answer  the 
purpose  of  the  contract.     Strowbridge  Lith.  Co.  v.  Crane,  58  Hun, 


CIl.    2)  BELIEF    FOR  AND    AGAINST   THIRD    PERSONS.  83 

611,  12  N.  Y.  Siipp.  898.  Tn  Sliubert  v.  Angeles,  80  App.  Div.  625, 
80  N.  Y.  Siipp.  146.  an  injunction  was  granted  against  an  actress  ap- 
pearing for  a  rival  house  in  violation  of  her  contract ;  but  it  there 
appeared  that  she  was  engaged  by  the  plaintifif  because  of  her  special 
talent  as  a  mimic  of  other  actresses  and  actors,  and  that  her  part  could 
not  be  taken  by  another.  The  salary  agreed  to  be  paid  defendant  was 
quite  moderate,  and  indicates  that  his  part  was  quite  ordinary,  and 
manifestly  could  be  easily  filled.  It  is  undisputed  that  he  was  ill,  and 
that  a  continuance  under  the  contract  with  plaintiff  would  endanger  his 
health  and  be  likely  to  destroy  his  voice  altogether. 

The  court  below  felt  constrained  to  grant  the  injunction  because  of 
the  peculiar  provision  of  the  agreement.  We  are  of  opinion,  however, 
upon  all  the  facts  disclosed,  that  the  plaintiff"  was  not  entitled  to  an 
injunction  during  the  pendency  of  the  action,  and  that  the  order  should 
be  reversed,  w.ith  $10  costs  and  disbursements,  and  the  motion  denied, 
with  $10  costs.    All  concur. 


SECTION  IV.  RELIEF  FOR  AND  AGAINST  THIRD  PERSONS 
—EQUITABLE  SERVITUDES. 


DANIELS  V.  DAVISON. 

(High  Court  of  Chancery,   1811,   17   Ves.  433.) 

In  this  case  the  Lord  Chancellor  (Eldon)  pronounced  the  following 
judgment :  I  have  already  expressed  my  opinion,  that  the  Plaintiff  is 
entitled  to  a  specific  performance  of  the  agreement  for  the  sale  of 
these  premises  to  him ;  and,  with  regard  to  the  subsequent  sale  by  the 
Defendant  Davison  to  the  other  Defendant  Cole,  my  notion  is,  that 
the  Plaintiff  has  an  Equity  to  have  a  conveyance  of  the  premises  from 
Cole;  upon  the  ground,  that  Cole  must  be  considered  in  Equity  as 
having  notice  of  the  Plaintiff's  equitable  title  under  the  agreement; 
that  Cole  was  bound  to  inquire ;  and  therefore,  without  going  into  the 
circumstances,  to  ascertain,  whether  he  had,  or  had  not,  actual  notice, 
he  is  to  be  considered  as  a  purchaser  of  the  other  Defendant's  title. 


84  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    1 

subject  to  the  equity  of  the  Plaintiff  to  have  the  premises  conveyed  to 
him  at  the  price,  which  he  had  by  the  agreement  stipulated  to  pay  to  that 
Defendant ;  and  that  it  is  competent  to  the  Court  to  make  that  arrange- 
ment as  between  Co-defendants. 

The  Plaintiff,  therefore,  deducting  his  costs  out  of  the  money  he  is  to 
pay,  must  have  such  conveyance  from  one  or  both  the  Defendants,  as 
the  Master  shall  settle,  if  they  differ;  but  I  can  go  on  farther  than  to 
regulate  as  between  the  Defendants  the  payment  of  that  money, 
which  the  Plaintiff  is  to  pay. 


PEARCE  V.  BASTABLE. 

(Supreme  Court  of  Judicature,  1901,  2  Ch.  122.) 

Coze;ns-Hardy,  J.     The  case  is  plain.    There  was  a  contract,  which 
is  in  no  way  impeached,   for  the  sale  to  the  plaintiff  of  the  equity 
of  redemption  in  certain  leasehold  property.    On  this  contract  a  deposit 
was  paid  by  the  purchaser,  and  the  title  was  accepted  by  him.     Then 
the  vendor  became  bankrupt,  and  a  delay   ensued,   which   was  pos- 
sibly occasioned  by  the  bankruptcy  proceedings.    The  draft  assignment 
was  sent  in  by  the  purchaser  and  approved,  and  the  engrossment  was 
forwarded.     There  is  no  dispute  about  the  form  of  the  assignment — 
it  was  of  the  leasehold  property  subject  to  the  mortgage.    The  trustee 
in  the  vendor's  bankruptcy  has,  to  use  plain  language,  the  impudence 
to  say  that  he  will  disclaim  the  contract  without  disclaiming  the  lease, 
keep  the  deposit  paid  by  the  purchaser  and  leave  him  to  take  such 
steps  in  the  bankruptcy  as  he  may  think  fit  to  take.    That  the  trustee 
cannot  be  allowed  to  disclaim  the  contract  without  disclaiming  the  lease 
was  plainly  shown  by  the  decision  of  Cave,  J.,  in  Re  Kerkham,  80  E.  T. 
Jour.  322.     There,  before  bankruptcy,  a  man  contracted  to  sell  lease- 
hold property  to  another  who  sold,  his  rights  under  the  contract  to  a 
third  person.     Th§  trustee  in  the  bankruptcy  of  the  original  vendor 
purported  to  disclaim  the  contract  without  disclaiming  the  lease,  and 
the  Court  held  that  it  was  not  competent  for  him  to  separate  the  sub- 
ject-matter of  the  contract  from  the  contract  and  keep  the  property, 
and  that  the  disclaimer  was  void.     That  is  precisely  this  case.     The 
disclaimer  which  the  trustee  has  purported  to  make  is  a  nullity.    What 


Oh.    2)  EELIEF    FOR  AND    AGAINST    THIRD    PERSONS.  85 

is  the  position  of  the  trustee  in  such  a  case?  It  has  been  contended  on 
his  behalf  that  the  fact  of  the  bankruptcy  makes  all  the  difference  as 
regards  the  liability  to  specifically  perform  a  contract.  In  support  of 
that,  Holloway  v.  York,  25  W.  R.  627,  has  been  referred  to.  The 
effect  of  that  decision  is  correctly  stated  in  Dart's  Vendors  and 
Purchasers,  6th  ed.  p.  1126 — that  is  to  say,  that  specific  performance 
cannot  be  decreed  against  the  trustee  in  bankruptcy  of  the  purchaser. 
That  decision  has  no  application  to  a  case  in  which  the  vendor's  trustee 
in  bankruptcy  is  the  defendant.  If  any  authority  is  needed  in  support 
of  this  finding  it  is  to  be  found  in  Ex  parte  Rabbidge,  8  Ch.  D.  367,  370, 
where  James,  L.  J.,  said:  "The  result  was  that,  upon  the  adjudication 
being  made,  the  legal  estate  in  the  property  vested  in  the  trustee  in  the 
bankruptcy,  subject  to  the  equity  of  the  purchaser  under  the  contract. 
That  equity  gave  him  a  right  to  have  the  property  conveyed  to  him, 
upon  payment  of  the  purchase-money  to  the  person  to  whom  the  pro- 
perty belonged."  And  Cotton,  L.  J.,  said :  "The  trustee  in  the  bank- 
ruptcy .  .  .  has  vested  in  him  the  estate  of  the  bankrupt  in  the 
property.  He  was  not  in  the  fullest  sense  of  the  word  a  trustee  of  the 
property  for  the  purchaser,  because  the  whole  of  the  purchase-money 
had  not  been  paid.  But  he  took  the  legal  estate  in  the  property,  sub- 
ject to  the  equity  of  the  purchaser  under  the  contract,  which  gave 
the  purchaser  the  right  to  say.  Convey  me  the  estate  on  my  paying  the 
purchase-money."  Anything  more  explicit  on  this  part  of  the  case 
could  not  well  be  imagined.  All  that  the  plaintiff'  asks  the  trustee  to 
do  is  to  execute  the  engrossment  already  approved  and  assign  the 
property  to  him,  and,  the  plaintiff  disclaiming  any  right  of  proof 
against  the  bankrupt's  estate,  an  order  for  such  execution,  and  that  the 
defendant  is  to  pay  the  costs  of  the  action,  must  be  made.     .     .     . 


GUPTON  V.  CxUPTON. 

(Supreme  Court  of  Missouri,  1S70,  47  Mo.  37.) 

Bliss,  Judge,  delivered  the  opinion  of  the  court. 

Tiiis  is  a  petition  for  the  specific  performance,  or  for  compensation 
for  its  breach,  of  a  contract  to  make  a  will  in  favor  of  plaintiff.  The 
plaintiff,  Mrs.  Gupton,  is  a  daughter,  by  a  former  marriage,  of  Celia 


^b 


SPECIFIC    PERFORMANCE    OF  CONTRACTS  (Pui't    1 


Barnett,  wife  of  Morgan  L.  Barnett,  both  defendants ;  and  the  petition 
alleges  that  said  Morgan  L.  Barnett,  being  himself  childless,  seventy- 
three  years  of  age,  and  very  infirm,  applied  to  the  plaintiffs  to  take  him 
and  his  wife  to  their  home,  and  take  care  of  them  during  their  lives, 
and,  in  consideration,  agreed  to  devise  and  bequeath  to  them  the  land 
in  controversy ;  that  plaintiffs  accepted  the  proposition,  and  in  the  fall 
of  1862  took  defendants,  Morgan  and  Celia  Barnett,  into  their  house, 
who  became  members  of  the  family  and  were  kindly  and  faithfully 
cared  for  by  the  plaintiffs,  who  are  still  ready  to  keep  them  in  com- 
fort and  happiness  during  their  lives;  that,  in  pursuance  of  said  agree- 
ment, the  said  Morgan,  in  1865,  destroyed  an  old  will,  and  made  a  new 
one  devising  and  bequeathing  to  petitioners  all  his  property;  that  the 
possession  of  the  farm  in  controversy  was  given  up  to  plaintiff,  Arring- 
ton,  who  made  improvements  upon  it,  rented  it  out,  and  paid  the  taxes. 
The  petition  further  shows  that  on  the  10th  day  of  August,  1867,  the 
said  Morgan  L.  Barnett.  in  violation  of  his  agreement,  without  consid- 
eration, and  with  full  knowledge  by  the  parties  of  all  the  facts,  con- 
veyed the  principal  part  of  his  farm  to  said  A.  Madison  Gupton,  and 
the  remainder  to  his  wife,  the  said  Celia,  who  have  taken  possession 
of  the  same.  The  petition  closed  with  several  specific  prayers  and 
with  a  prayer  for  general  relief.     .     .     . 

From  a  careful  examination  of  all  the  evidence  bearing  upon  this 
part  of  the  case,  I  cannot  find  that  the  plaintiff's  failed  in  living  up  to 
the  spirit  of  their  agreement.  It  does  not  appear  that  any  discontent 
had  arisen  in  the  mind  of  Mr.  Barnett  until  the  latter  half  of  the 
fourth  year  of  his  residence  with  them,  and  we  have  seen  how  trifling 
were  the  first  causes.  An  old  man,  nearly  eighty,  struck  with  paraly- 
sis, unable  to  walk,  who,  as  he  says,  had  recently  given  hundreds  of 
dollars  to  the  plaintiff  and  his  family,  who  had  made  his  will,  leaving 
them  everything,  became  excited  about  the  collection  of  a  few  dollars 
by  the  one  who  was  soon  to  receive  everything;  and  when  he  paid 
him,  while  others  were  present,  charges  him,  the  next  time  he  calls 
upon  him,  in  a  sarcastic  and  cutting  manner,  with  bringing  in  wit- 
nesses to  see  it  paid.  It  is  manifest  that  the  whole  trouble  was  in 
the  excited  mind  of  Mr.  Barnett,  but  how  the  feeling  arose  and  in- 
creased does  not  appear  from  any  direct  testimony.  It  could  not  have 
sprung  from  Gupton  and  wife  absenting  themselves  from  his  room, 
as  he  charges  them  both  with  doing,  because  it  was  the  cause  of  and  not 


Ch.  2)       BELIEF  FOR  AXD  AGAINST  THIRD  PERSONS.  87 

the  effect  of  their  being  less  famihar,  and  because,  from  the  whole 
testimony,  it  is  clear  that  his  recollection  of  time,  as  well  as  events,  is 
not  to  be  relied  on.  A  fact  or  two.  however,  throws  a  little  light  upon 
the  matter.  Defendant,  A.  Madison  Gupton,  is  a  nephew  of  plaintiff 
and  was  a  frequent  visitor  at  his  house.  In  April  it  is  shown  that  he 
asked  Mr.  Barnett  to  let  him  have  his  farm,  and  he  would  take  care  of 
him.  Nothing  further  appears  except  that  about  the  first  of  August, 
while  the  plaintiffs  were  away  from  home  for  some  ten  days,  this 
Madison  brings  a  magistrate  to  Mr.  Gupton  to  acknowledge  the  deeds, 
and  then  the  whole  matter  was  closed  up.  This  man,  a  frequenter  at 
the  house,  his  eye  on  the  farm  from  the  beginning  of  the  troubles,  his 
final  success  in  obtaining  the  property — put  these  facts  together,  and 
may  we  not  conjecture  that  he  at  least  was  not  indifferent  to  the  con- 
tinuance of  the  difficulties  that  were  about  to  prove  so  fruitful  to  him? 

That  an  agreement  to  dispose  of  property  by  will  in  a  particular  way, 
if  made  on  a  sufficient  consideration,  is  valid  and  binding,  is  settled  in 
this  State  by  Wright  v.  Tinsley,  30  Mo.  389,  where  the  subject  is  con- 
sidered at  length  and  the  authorities  reviewed. 

The  statute  of  frauds  is  set  up  as  a  defense,  inasmuch  as  the  orig- 
inal agreement  was  not  made  in  writing.  But  this  defense  will  not 
avail  for  the  obvious  reason  that  the  contract  was  in  a  great  measure 
performed  by  both  parties.  The  plaintiffs  took  Mr.  and  Mrs.  Barnett 
to  their  house  and  provided  for  them  until  they  left.  The  possession 
of  the  farm  was  also  surrendered  and  the  will  was  executed  according 
to  the  terms  of  the  contract.  Nothing  remained  to  be  done  by  either 
party  except  the  continued  support  of  the  makers  of  the  will,  which 
is  tendered  by  the  plaintiffs.  Such  partial  performance  has  always 
been  held  to  take  the  case  out  of  the  statute.  (20  Mo.  84;  45  Mo.  288; 
Sugd.  Vend.  ch.  3,  §  7,  and  cases  cited  in  notes;  2  Sto.  Eq.  §  759 
et  seq.)  Contracts  like  the  one  under  consideration  have  been  before 
the  courts,  and  have  uniformly  been  held  to  be  valid  when  partially 
performed,  and  when  the  refusal  to  complete  them  would  work  a 
fraud  on  the  other  party.  In  Brinker  v.  Brinker,  7  Penn.  St.  53,  such 
an  agreement  was  sustained,  not  because  possession  of  the  property 
was  delivered,  but  because  the  will  was  executed  according  to  the 
terms  of  the  agreement. 

The  cases  of  Van  Dyne  v.  Vrcckuid,  3  Slockl.,  N.  J.,  370,  and 
Davidson  v.  Davidson,  2  Bcasley,  N.  J.,  S.  C,  were  both  very  similar 
to  the  present,  and  the  verbal  promises  of  the  owners  of  the  property 


88  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    .1. 

were  enforced  for  the  reason  that  the  services  and  support  contracted 
for  had  been  rendered. 

Defendants  claim  that  the  plaintiff  is  entitled  to  no  relief  in  this 
action  for  the  further  reason  that  Barnett,  by  his  deed  to  Madison  Gup- 
ton,  has  put  it  out  of  his  power  to  dispose  of  his  property  by  will ;  that 
in  any  event  the  contract  can  not  be  fully  executed  until  the  death  of 
Barnett,  and  hence  his  only  remedy  is  by  a  suit  for  damages  for  a 
breach  of  the  agreement.  In  support  of  this  claim  reliance  is  had  upon 
McQueen  v.  Chouteau's  Heirs,  20  Mo.  222,  and  upon  Hatch  v.  Cobb, 
4  Johns.  Ch.  559,  and  Kempshall  v.  Stone,  5  Johns.  193,  cited  in  that 
case.  McQueen  v.  Chouteau's  Heirs  was  a  bill  for  specific  perform- 
ance founded  upon  a  contract  to  sell,  and  the  vendor  had  conveyed 
the  property  to  a  third  person  after  having  offered  to  fulfill.  Upon 
this  point  the  judge  remarked  that,  in  cases  similar  to  this,  courts  of 
equity  have  refused  to  decree  a  specific  performance  of  the  contract, 
and  have  refused  to  entertain  the  bill  for  the  purpose  of  compensating 
the  complainant  in  damages,  but  have  left  him  to  his  action  at  law  on  the 
agreement.  The  court,  it  will  be  seen,  adopts  no  general  rule,  and  the 
cases  referred  to  are  entirely  consistent  with  the  plaintiff's  equity,  even 
if  specific  performance  could  not  be  decreed. 

Hatch  V.  Cobb  was  a  case  where  the  purchaser  of  land  by  contract 
had  neglected  to  pay,  and,  after  its  conveyance  by  his  vendor,  filed  his 
bill.  The  court  decided  that  specific  performance  could  not  be  de- 
creed, that  the  complainant  was  not  entitled  to  compensation  in  equity, 
and  remitted  him  to  his  suit  upon  his  covenant  for  damages  if  he  was 
entitled  to  any.  The  court,  however,  admits  that,  in  a  special  case,  a 
bill  for  damages  might  be  sustained;  and,  in  referring  to  Phillips  v. 
Thompson,  1  Johns.  Ch.  131,  where  the  bill  was  retained  in  order  to 
afford  compensation,  says  that  the  court  made  out  a  case  of  very 
clear  equity  for  relief,  and  the  remedy  was  precarious  at  law.  The 
bill  was  dismissed  in  Kempshall  v.  Stone  because  "the  remedy  was 
clear  and  perfect  at  law  by  an  action  upon  the  covenant,"  the  defend- 
ant having  conveyed  the  land  to  a  third  person,  for  good  consideration, 
without  notice. 

The  doctrine  of  these  cases  is  simply  this:  that  when  the  vendor 
of  land  by  contract  conveys  the  property  contracted  to  be  sold  to  a 
third  person,  in  such  a  manner  that  the  land  can  not  be  reached,  the 
court  will  not  entertain  a  petition   in  equity  for  a  specific  perform- 


Ch.  2)      EELIEF  FOR  AND  AGAINST  THIRD  PERSONS.         89 

ance  merely  for  the  purpose  of  compensating  the  purchaser  in  dam- 
ages, but  will  leave  him  to  his  action  upon  the  agreement.  Some 
ground  for  equitable  interference  will  be  required,  and  in  the  case  at 
bar  there  is  abundant  ground,  even  if  the  contract  could  not  be  specifi- 
cally enforced.  First,  it  is  a  parol  contract,  which  can  not  be  sued  on 
at  law,  but  which  equity  will  enforce  under  the  circumstances  hereto- 
fore indicated.  Second,  Barnett  has  conveyed  to  Madison  Gupton  all 
his  property,  and  a  judgment  for  damages  merely  would  be  altogether 
useless.  It  must  be  made  to  fasten  upon  some  property  which  can 
only  be  reached  in  equity,  not  by  a  creditor's  bill,  but  as  being  subject 
to  the  plaintiffs'  claim  by  the  terms  of  the  contract,  or  he  is  wholly 
without  remedy.  Third,  the  case  made  by  the  petition  is  altogether  and 
throughout  equitable;  and  having  thus  obtained  jurisdiction,  the  court 
will  give  the  plaintiffs  any  relief  to  which  they  are  entitled. 

A.  Madison  Gupton  took  with  full  notice,  and  in  fraud  of  com- 
plainant's rights,  and  it  is  not  in  his  power  to  remit  us  to  a  money 
demand.  It  would  be  a  mockery,  as  well  as  a  bounty  to  an  unwarrant- 
able interference  by  strangers  in  a  case  like  the  present,  to  say  that 
the  plaintiff  is  entitled  to  only  a  money  judgment ;  and  our  courts  have 
gone  as  far  as  any  other  in  giving  effectual  relief.       .     .     . 

The  judgments  of  the  court  below  are  reversed  and  the  cause  re- 
manded, with  directions  to  proceed  as  herein  indicated.  The  other 
judges  concur. 


WEIS  V.  MEYER. 

(Supreme  Court  of  Arkansas,  1806,  1  S.  W.  679.) 

CoCKRiLL,  C.  J.  Weis'  complainant  in  equity,  for  the  specific 
performance  of  a  contract  to  convey  lands,  was  dismissed  upon  general 
demurred,  and  he  has  appealed.  He  was  not  a  party  to  the  contract 
which  he  sought  to  enforce,  but  was  the  vendee  of  one  who  was  named 
in  it  as  a  beneficiary  of  its  provisions.  The  only  question  seems  to  be, 
did  this  give  Weis  the  right  to  enforce  the  contract  ? 

The  complaint  alleges  that  the  owners  of  a  plantation  in  Chicot 
County  conveyed  a  part  of   it  to   Isaac  Ililliard,   in    1879,   and   sold 


00  SPECIFIC    PERFORMANCE    OF  CONTRACTS  (Part    1 

or  leased  other  parts  of  the  place  to  clivers  other  persons,  among  whom 
were  the  mercantile  firm  of  Dryfus  &  Meyer ;  that  afterwards,  when 
the  lands  were  about  to  be  sold  under  a  decree  foreclosing  a  lien 
superior  to  the  rights  of  the  vendees,  the  vendors,  in  order  to  pro- 
tect them  from  injury,  entered  into  an  agreement  in  writing  with 
Dryfus  &  Meyer,  by  which  it  was  arranged  that  the  latter  parties 
should  buy  in  all  of  the  lands  subject  to  be  sold  under  the  decree,  the 
greater  part  of  which  still  belonged  to  the  original  vendors,  and  im- 
mediately convey,  by  quitclaim  deeds,  to  the  parties  who  had  already 
purchased  parts  of  the  plantation  referred  to ;  an  arrangement  being 
made  by  which  Dryfus  &  Meyer  should  be  made  whole  for  the  amount 
paid  by  them  in  discharging  the  decree.  It  also  alleged  that  Dryfus 
&  Meyer  purchased  the  land  under  the  decree,  and  took  a  conveyance 
to  themselves  in  execution  of  the  agreement ;  and  that  afterwards 
Dryfus  conveyed  to  Meyer  all  his  right,  title,  and  interest  in  the  premis- 
es, and  that  Meyer  bound  himself  to  carry  out  the  agreement  entered 
into  by  the  firm,  but  that  he  now  refuses  to  execute  a  deed  to  Hilliard, 
or  to  the  appellant,  who  is  Hilliard's  vendee. 

Taking  the  allegation  of  the  complaint  as  true,  Dryfus  &  Meyer, 
upon  their  purchase  under  the  decree,  held  the  naked  legal  title  to  the 
lands  that  had  been  previously  conveyed  to  Hilliard  in  trust  for  him, 
and  it  was  their  legal  duty  to  execute  a  deed  to  him  in  accordance  with 
their  contract.  After  the  conveyance  by  Dryfus  to  Meyer,  the  latter 
held  the  legal  title  subject  to  the  same  duty.  The  obligation  of  Dry- 
fus &  Meyer  was  assumed  for  their  own  as  well  as  for  the  express 
benefit  of  Hilliard  and  others  in  similar  circumstances,  and  was  in- 
duced by  their  common  grantors,  who  were  resting  under  a  legal  ob- 
ligation to  protect  from  harm  the  interests  in  the  lands  they  had  sold. 

The  right  of  a  party  to  maintain  an  action  on  an  agreement  made 
with  another  for  his  benefit  is  a  doctrine  to  which  this  court  has  given 
its  assent,  and  it  entitled  Hilliard  to  maintain  suit  in  his  own  right  to 
enforce  the  contract  set  forth.  Hecht  v.  Caughron,  46  Ark.  132, 
The  appellant,  by  Hilliard's  conveyance  to  him  of  his  entire  interest, 
succeeded  to  his  rights,  and  was  entitled  to  file  the  complaint  in  his 
own  name. 

The  decree  must  be  reversed,  and  the  cause  remanded,  with  in- 
structions to  overrule  the  demurrer. 


Ch.    2)  EQUITABLE     SEEVITUDES.  91 


ROBINSON  V.  APPLETON. 

(Supreme  Court  of   Illinois,   1888,   124   111.   276,   15   N.   E.   761.) 

ShopE,  J.  This  wa.s  a  bill  filed  by  the  executors  of  the  last  will 
of  James  E.  Cooley,  deceased,  for  the  specific  performance  of  a  con- 
tract, made  by  their  testator  with  David  B.  Sears,  since  deceased,  for 
the  sale  of  several  tracts  of  land.  The  law  is  well  settled,  that  the 
vendor  may  have  a  specific  performance  of  a  contract  for  the  sale  of 
land  decreed  against  his  vendee.  (Chambers  v.  Rovve.  36  111.  171.)  The 
remedy  in  cases  of  specific  performance  is  mutual,  so  that  either  the 
vendor  or  vendee  may  avail  of  it.  Story's  Eq.  Jur.  sees.  723,  789,  790, 
796;  Andrews  et  al.  v.  Sullivan.  2  Gilm.  332;  Burger  et  al  v.  Potter  et 
al.  32  111.  66.)  This  remedy  extends  in  favor  of  the  personal  repre- 
sentatives of  a  deceased  vendor  (Burger  v.  Potter,  supra),  and  against 
subsequent  purchasers  or  assignees  of  the  vendee,  taking  with  notice. 
(Story's  Eq.  Jur.  sec  789;  Champion  v.  Brown.  6  Johns.  Ch.  398.) 
The  proceeding  in  this  case  may  be  regarded  as  in  rem,  as  against 
appellants,  who  took  as  assignees  of  the  original  purchaser.  It  is  clear 
that  the  vendor  or  his  personal  representatives  can  not  have  a  personal 
decree  against  appellants,  unless  they,  in  their  purchase  from  the  ven- 
dee, Sears,  assumed  the  payment  of  the  unpaid  purchase  money  as  part 
of  the  price  they  were  to  pay  Sears  for  his  interest  in  the  land.     .     .     . 


WHATMAN  V.  GIBSON. 

(High    Court   of   Chancery,    1838,   9    Sim.    196.) 

The  Vice-Chanceli.or.  The  Defendant  Gomm  admits,  by  his 
answer,  that  he  docs  llircaten  and  intend  to  use  the  house  niuubered 
seven,  as  a  family  hotel  and  inn  and  tavern;  there  can  be  no  doubt, 
therefore,  that  he  has  brought  himself  within  the  words  of  the  coven- 
ant in  the  deed  of  February  1799. 

Now,  though  neither  the  conveyance  to  Cull,  nor  the  conveyance 
to  Austin    (under  which  the  parties  severally  claim),  has  been  pro- 


92  SPECIFIC   PERFOEMANCE   OF  CONTRACTS  (Part    1 

(luced,  yet,  I  must  take  it  as  a  fact,  that  those  deeds  recited  that  Cull 
and  Austin  had  executed  the  deed  of  February  1799:  and,  with  respect 
to  that  deed,  it  seems  to  me  that  the  matter  is  to  be  considered,  in  this 
Court,  not  merely  with  reference  to  the  form  in  which  the  covenants 
are  expressed,  but  also  with  reference  to  what  is  contained  in  the  pre- 
liminary part  of  the  deed,  namely,  that  Fleming  had  determined  and 
proposed,  and  did  thereby  expressly  declare  that  it  should  be  a  general 
and  indispensable  condition  of  the  sale  of  all  or  any  part  of  the  land 
intended  to  form  the  row,  that  the  several  proprietors  of  such  land 
respectively  for  the  time  being  should  observe  and  abide  by  the  several 
stipulations  and  restrictions  thereinafter  contained  or  expressed  in 
regard  to  the  several  houses  to  be  erected  theron,  and  in  all  other  par- 
ticulars. Then  follow  the  stipulations ;  and,  whatever  may  be  the 
form  in  which  the  covenant  is  expressed,  the  stipulations  are  plain  and 
distinct.  One  of  them  is  that  none  of  the  proprietors  of  any  of  the 
several  lots  or  parcels  of  land  intended  to  form  the  row,  shall,  at  any 
time  or  times  or  on  any  account  or  pretense  whatever,  erect  or  suffer  to 
be  erected  on  any  of  the  several  lots  or  parcels  of  land,  which  shall  be 
to  them  respectively  belonging  for  the  time  being  or  on  any  part  of 
them  or  any  of  them,  any  public  livery  stables  or  public  coach-house, 
or  use,  exercise  or  carry  on,  or  suft'er  to  be  used,  exercised  or  carried 
on  thereon  or  on  any  part  thereof,  the  trade  or  business  of  a  melting 
founder,  tobacco-pipe  maker,  common  brewer,  tallow  chandler,  soap 
boiler,  distiller,  innkeeper,  tavern  keeper,  common  alehouse  keeper, 
brazier,  working  smith  of  any  kind,  butcher  or  slaughterman,  or  any 
other  noxious  or  offensive  trade  or  business,  wdiereby  the  neighbor- 
hood may  be,  in  any  respect,  endangered  or  annoyed,  or  burn  or  make, 
or  suffer  to  be  burnt  or  made,  on  any  of  the  said  lots  or  parcels  of  land 
or  on  any  part  of  any  of  them,  any  bricks  or  lime ;  and  that  no  other 
building  or  buildings  than  good  dwelling-houses  or  lodging-houses  shall 
be  erected  in  front  of  any  of  the  said  lots. 

It  is  quite  clear  that  all  the  parties  who  executed  this  deed,  were 
bound  by  it :  and  the  only  question  is  whether,  there  being  an  agree- 
ment, all  persons  who  come  in  as  devisees  or  assignees  under  those  who 
took  with  notice  of  the  deed,  are  not  bound  by  it.  I  see  no  reason  why 
such  an  agreement  should  not  be  binding  in  equity  on  the  parties  so 
coming  in  with  notice.  Each  proprietor  is  manifestly  interested  in 
having  all  the  neighboring  houses  used  in  such  a  w^ay  as  to  preserve 
the  general  uniformity  and  respectability  of  the  row,  and  consequently 


Ch.    2)  EQUITABLE     SERVITUDES.  9 


o 


in  preventing  any  of  the  houses  from  being  converted  into  shops  or 
taverns,  which  would  lessen  the  respectability  and  value  of  the  other 
houses. 

As  the  release  of  1802  recites  that  Austin  executed  the  deed  of 
1799,  I  must  take  it  as  a  fact  that  he  did  execute  it;  and  then,  what- 
ever may  be  the  form  of  the  covenant,  or  whatever  difficulty  there  may 
be  in  bringing  an  action  on  it,  I  think  that  there  is  a  plain  agreement 
which  a  court  of  equity  ought  to  enforce :  and,  as  the  Defendant  Gomm 
admits  that  he  intends  to  carry  on  one  of  the  prohibited  businesses, 
he  comes  within  the  purview^  of  the  deed,  and  ought  to  be  restrained 
from  so  doing  by  the  injunction  of  this  Court.     .     .     . 

Injunction  granted. 


HARTMAN  v.  WELLS. 

(Supreme  Court  of  Illinois,  1913,  257  111.  1G7,  100  N.  E.  500.) 

Farmer,  J.  The  bill  in  this  case  was  filed  by  appellant  to  enjoin 
appellees  from  violating  a  building  line  agreement  entered  into  be- 
tween appellant  and  the  grantor  of  appellees,  and  for  a  mandatory 
injunction  to  compel  appellees  to  remove  certain  porches  erected  in 
violation  of  said  building  line  agreement 

The  existence  of  the  building  line  agreement  and  its  violation  by 
appellees  are  not  controverted.  They  claim  they  had  no  actual  notice 
of  the  existence  of  said  agreement,  but  it  was  a  matter  of  record  be- 
fore they  or  their  predecessor  in  title  purchased  lot  3,  and  they  were 
bound  to  know  of  its  existence.  The  real  defense  made  by  appellees 
is  that  appellant's  property  is  not  damaged  by  the  porches  construct- 
ed in  violation  of  the  agreement,  and  that  on  account  of  their  cost, 
the  material  out  of  which  they  are  constructed  and  the  nature  of  the 
construction  it  would  be  inequitable  to  compel  their  removal.  No  com- 
plaint is  made  by  appellees  of  the  injunction  restraining  them  from 
•  completing,  repairing  or  rebuilding  said  porches,  or  any  part  therof, 
which  project  more  than  four  feet  east  of  the  building.  We  are  at 
a  loss  to  understand  why,  if  it  was  inequitable  to  require  the  removal 
of  said  structures  projecting  beyond  the  building  line,  it  would  not 
also  be  inequitable  and  unauthorized  to  enjoin  their  completion  and 


94    .  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Part    1 

maintenance.  It  is  apparent  that  in  their  incompleted  state  they  are 
of  Httle  vakie  for  use,  and  if  their  completion  and  repairing  would  be 
a  violation  of  the  agreement  authorizing  interference  by  injunction,  it 
would  seem  their  maintenance  would  be  also.  Restrictions  against  the 
use  of  property  held  in  fee,  it  is  true,  are  not  favored,  and  doubts  will, 
in  general,  be  resolved  against  them,  but  where  the  intention  of  the 
parties  is  clearly  manifested  in  the  creation  of  the  restrictions  they 
will  be  enforced  in  a  court  of  equity.  (Eckhart  v.  Irons,  128  111.  568; 
Hutchinson  v.  Ulrich,  145  id.  336,  Hays  v.  St.  Paul  M.  E.  Church, 
196  id.  633;  Curtis  v.  Rubin  244  id.  88.)  It  is  true,  parties  may  by 
their  own  acts  place  themselves  in  a  position  where  equity  will  not 
interfere,  or  the  property  and  the  use  to  which  it  may  be  put  and 
the  character  of  the  vicinity  and  environment  may  be  so  changed  that 
the  purposes  for  which  the  restrictions  were  imposed  will  not  be 
affected  by  their  enforcement.  In  such  cases  enforcement  may  be 
denied.  (Ewertsen  v.  Gerstenberg,  186  111.  344;  Curtis  v.  Rubin,  supra.) 
There  was  nothing  shown  as  to  the  use  of  the  property  here  involved, 
its  environment  or  the  acts  of  the  parties  which  would  bring  it  within 
the  class  of  cases  where  the  enforcement  of  such  restrictions  has 
been  denied.  The  building  of  the  porches  was  begun  without  the 
knowledge  of  appellant  and  when  he  was  absent  from  home.  As 
soon  as  he  returned  and  discovered  the  building  line  agreement  was 
being  violated  he  made  known  to  appellees  his  objections.  Appellant 
had  kept  and  performed  the  covenants  on  his  part  by  paying  to  Lederer 
the  $2000  in  cash  and  giving  lot  3  the  benefit  of  an  easement  of  five 
feet  off  the  north  side  of  lot  4  for  light  and  air.  All  of  this  appellees 
were  bound  to  know,  as  the  agreement  was  a  matter  of  record. 

The  evidence  as  to  whether  appellant's  property  was  damaged  by 
the  violation  of  the  agreement  was  conflicting,  but  we  do  not  think 
that  was  a  material  question.  In  Consolidated  Coal  Co.  v.  Schmisseur, 
135  111.  371.  the  court,  in  discussing  the  enforcement  of  negative  cove- 
nants in  courts  of  equity,  said  it  was  well  settled  that  equity  would 
entertain  bills  for  injunctions  to  prevent  their  breach  although  the 
breach  would  cause  no  substantial  injury  or  although  the  damages 
might  be  recoverable  in  an  action  at  law.  "This  is  upon  the  principle' 
that  the  owner  of  land  selling  or  leasing  it  may  insert  in  his  deed  or 
contract  just  such  conditions  and  covenants  as  he  pleases  touching  the 
mode  of  enjoyment  and  use  of  the  land.  As  said  in  Steward  v. 
Winters,  4  Sandf.  Ch.  587:  'He  is  not  to  be  defeated  when  the  cove- 


Cll.    2)  EQUITABLE     SERVITUDES.  95 

nant  is  broken,  by  the  opinion  of  any  number  of  persons  that  the 
breach  occasions  him  no  substantial  injury.  He  has  a  right  to  define 
the  injury  for  himself,  and  the  party  contracting  with  him  mvist  abide 
by  the  definition.'  (Hill  v.  Miller,  3  Paige,  254;  Macher  v.  Foundling 
Hospital.  1  \>s.  &  B.  188;  High  on  Injunctions,  1142.)  In  this  latter 
class  of  cases  the  court  proceeds  upon  the  ground  that  the  grantor  or 
lessor  having  expressly  stipulated  that  the  grantee  or  lessee  shall  not 
do  the  particular  thing  complained  of,  the  latter  is  bound  to  refrain, 
and  the  former  is  not  required  to  submit  to  the  opinions  of  others  as 
to  whether  he  will  or  will  not  sufifer  substantial  injury."  That  case  was 
cited  and  quoted  in  substance  in  the  opinion  in  Star  Brewery  Co.  v. 
Primas,  163  111.  652.  In  Steward  v.  Winters,  supra,  cited  in  both  the 
last  mentioned  cases.  Vice-chancellor  Sanford,  delivering  the  opinion 
of  the  court,  said:  "It  is  said  that  the  remedy  at  law  for  damages 
is  adequate,  and  that,  so  far  from  there  being  an  irreparable  injury 
by  the  continuance  of  the  breach  of  this  covenant,  it  is  shown  there 
can  be  no  injury  at  all.  I  apprehend  that  we  are  not  to  regard  this  sub- 
ject in  the  manner  indicated  by  the  latter  proposition.  The  owner  of 
land  selling  or  leasing  it  may  insist  upon  just  such  covenants  as  he 
pleases  touching  the  use  and  mode  of  enjoyment  of  the  land,  and  he  is 
not  to  be  defeated,  when  the  covenant  is  broken,  by  the  opinion  of 
any  number  of  persons  that  the  breach  occasions  him  no  substantial 
injury.  He  has  the  right  to  define  the  injury  for  himself,  and  the 
party  contracting  with  him  must  abide  by  the  definition."  We  do  not 
regard  it  necessary  to  cite  further  authority  upon  this  question.  None 
in  this  State,  at  least,  will  be  found  to  the  contrary. 

In  our  opinion  the  case  made  by  appellant  entitled  him  to  the  man- 
datory writ  prayed  for,  commanding  appellees  to  remove  the  struc- 
tures extending  beyond  the  building  line.     .     .     . 


IN  RE  NISBET  AND  POTTS'  CONTRACT 

(Supreme  Court  of  Judicature,  (1906)   1  Ch.  Div.  386,  409.) 

CozEns-Hardy,  L.  J.  Now,  the  suggestion  which  is  at  the  root  of 
the  appellant's  argument  is  this,  that  a  squatter  can  wholly  disregard 
restrictive  covenants  affecting  a  building  estate.     That  is  so  starthng 


96  SPECIFIC  PERFOEMANCE   OF  CONTEACTS  (Part    T 

a  proposition,  and  so  wide-reaching,  that  it  must  be  wrong.  The 
value  of  estates  in  the  neighborhood  of  London  and  all  large  towns, 
and  the  amenity  of  those  estates,  depend  almost  entirely  upon  the 
continuance  of  the  mutual  restrictive  covenants  affecting  the  user  and 
the  enjoyment  of  the  property ;  and  when  we  are  told  that  the  squatter, 
notwithstanding  that  he  is  a  mere  trespasser,  is  to  be  in  a  better  posi- 
tion than  that  occupied  by  a  person  deriving  a  title  strictly  through  the 
original  covenantor,  one  feels  that  there  must  be  an  answer  to  the 
argument ;  and  I  think  the  authorities,  when  carefully  examined,  make 
the  answer  quite  plain.  The  benefit  of  a  restrictive  covenant  of  this 
kind  is  a  paramount  right  in  the  nature  of  a  negative  easement  not  in 
any  way  capable  of  being  affected  by  the  provisions  of  the  Statute  of 
Limitations  on  which  the  squatter  relies.  The  only  rights  extinguished 
for  the  benefit  of  the  squatter,  under  s.  34  are  those  of  persons  who 
might,  during  the  statutory  period,  have  brought,  but  did  not  in  fact 
bring,  an  action  to  recover  possession  of  the  land.  But  the  person  en- 
titled to  the  benefit  of  a  restrictive  covenant  like  this  never  had  any 
cause  of  action  which  he  could  have  brought,  because  unless  and  until 
there  is  a  breach,  or  a  threatened  breach,  of  such  a  covenant,  it  is  im- 
possible for  the  person  entitled  to  the  benefit  of  it  to  bring  any  action. 
It  appears,  therefore,  so  far  as  the  squatter  himself  is  concerned,  that 
both  during  the  currency  of  the  twelve  years  and  after  the  expiration 
of  the  twelve  years,  there  could  be  no  possible  answer  to  the  claim  of 
anyone  seeking  to  enforce  the  covenant.  In  fact,  there  would,  so  far 
as  he  is  concerned,  be  no  difference  between  this  covenant,  which  is 
in  the  nature  of  an  equitable  easement,  and  a  legal  easement  strictly  and 
properly  so  called.  But  although  the  squatter  took  the  property  sub- 
ject to  this  equitable  burden,  it  may  be  that  the  present  vendor,  who 
purchased  from  or  through  the  squatter  is  able  to  say  that  the  burden 
does  not  affect  the  property  in  his  hands.  But  what  must  he  prove  in 
order  to  claim  this  exemption?  He  must  prove  that  he  is  a  purchaser 
for  value  of  the  legal  estate  without  notice.  If  in  the  old  days  he  had 
simply  pleaded  "I  am  a  purchaser  for  value,"  such  a  plea  would  have 
been  demurrable ;  he  would  have  had  to  go  further  and  allege  and 
prove  that  he  was  a  purchaser  for  value  without  notice,  and  he  must 
do  the  same  at  the  present  day.  Now,  can  the  present  vendor  allege 
and  prove  that  he  was  a  purchaser  for  value  without  notice?  I  think 
not.  It  is  not  necessary,  of  course,  to  prove  actual  notice ;  that  has  not 
been  contended.     But  if  a  purchaser  chooses  to  take  a  title  without 


Ch.    2)  EQUITABLE    SERVITUDES.  97 

making  full  inquiries,  he  cannot  be  allowed  to  say  that  he  had  no  notice 
of  that  which  a  full  abstract  would  have  disclosed.  On  this  point  the 
observations  of  North,  J.,  In  re  Cox  and  Neve's  Contract  (1891)  2  Ch. 
109,  and  the  passages  from  his  judgment  which  have  been  referred  to, 
are  so  much  in  point  that  I  may  venture  to  read  them.  He  says:  "I 
must  say  that  I  dissent  entirely  from  the  proposition  that  the  purchaser 
would  have  taken  the  property  free  from  the  restrictive  covenant, 
if  he  had  made  no  inquiry.  On  the  contrary,  I  think  he  would  have 
been  bound  by  it,  and  for  this  reason.  He  had  agreed  by  the  bargain 
contained  in  the  conditions  of  sale  to  accept  a  title  of  less  than 
forty  years.  That  cannot  relieve  him  from  all  knowledge  of  the  prior 
title,  or,  it  would  come  to  this, — that,  if  a  man  was  content  to  purchase 
property  on  the  condition  that  he  should  not  inquire  into  the  title,  he 
would  acquire  a  title  free  from  any  existing  restrictions,  and  would 
not  have  constructive  notice  of  any  incumbrance." 

Of  course,  the  law  does  not  permit  of  anything  so  absurd  as  that, 
and  I  should  be  sorry  to  think  that  there  could  be  any  real  doubt  upon 
the  subject.  In  the  case  of  a  lessee  the  law  has  gone  possibly  one  step 
further,  because  in  Patman  v.  Harland  17  Ch.  D.  353,  it  has  been 
held,  and  so  far  as  I  know  it  has  never  been  questioned,  that  a  lessee 
is  affected  with  notice  of  any  restrictive  covenants  the  existence  of 
which  he  would  have  learned  if  he  had  investigated  the  lessor's  title, 
even  though,  since  the  Vendor  and  Purchaser  Act,  1874,  the  lessee  is 
not  entitled,  under  an  open  contract  for  a  lease,  to  require  the  produc- 
tion of  the  lessor's  title.  As  Sir  George  Jessel  in  that  case  said,  that 
aheration  of  the  law  did  not  really  prevent  or  interfere  with  the  ap- 
plication of  Tulk  V.  Moxhay,  2  Ph.  774.  If  the  lessee  wanted  to  escape 
from  that  obligation,  he,  in  agreeing  to  take  -the  lease,  should  have 
required  the  production  of  the  lessor's  title.  So  that  the  doctrine  has 
been  extended,  and  I  venture  to  think  properly  extended,  not  merely  to 
a  case  where  a  purchaser  under  an  open  contract  would  be  affected 
with  notice  of  a  document  forming  part  of  the  chain  of  title,  but  also,  at 
least  in  the  case  of  a  lease,  to  a  case  where  a  purchaser  under  an  open 
contract  would  not  be  entitled  to  require  production  of  the  documents 
which  alone  could  give  him  notice.  I  think  that  a  squatter,  who  has 
been  in  possession  for  more  than  twelve  years,  is  certainly  in  no  better 
position  that  any  other  person.  He  cannot  make  a  good  title  without 
delivering  an  abstract  extending  over  the  full  period;  and  if  ihc  pur- 
1  Eq.-7 


98  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    1 

chaser  is  willing  to  take  a  title  depending  upon  the  Statute  of  Lyimi- 
tations  and  the  effect  of  s.  34,  he  must  take  such  title  subject  to  the 
equitable  burden,  as  it  is  often  called  by  analogy  to  Tulk  v.  Moxhay, 
2  Ph.  774,  except  in  so  far  as  it  can  be  shown  that  the  equitable  burden 
has  been  got  rid  of  by  means  of  a  purchaser  for  value  without  notice. 


BADGER  V.  BOARDMAN. 

(Supreme  Court  of  Massachusetts,  1860,  16  Gray,  559.) 

Bill  in  Equity  to  enforce  a  restriction  in  a  deed  from  Oliver  Downing 
to  the  defendant  of  one  of  several  parcels  of  land  on  the  westerly  side 
of  Bowdoin  Street  in  Boston. 

From  the  bill  and  answer  and  evidence  it  appeared  that  Downing, 
being  the  owner  of  all  these  parcels  of  land,  which  were  described  on 
a  plan  thereof,  dated  the  12th  of  December,  1843,  and  recorded  in  the 
registry  of  deeds  on  the  21st  of  March,  1844,  conveyed  to  the  defendant 
in  fee  simple  the  parcel  or  lot  numbered  3  on  the  plan,  with  the  build- 
ing thereon  standing,  by  metes  and  bounds  and  "subject  to  the  follow- 
ing restriction  that  no  out  buildings  or  shed  shall  ever  be  erected  west- 
erly of  the  main  building  of  a  greater  height  than  those  now  standing 
thereon ;"  and  that  on  the  25th  of  December  1844,  Downing  conveyed 
the  parcel  or  lot  numbered  4  on  the  plan  to  George  Roberts,  with  all 
the  rights,  easements,  privileges  and  appurtenances  thereto  belonging, 
which  afterwards  came  by  mesne  conveyances  to  the  plaintiff.  The 
bill  was  dismissed,  and  the  plaintiff  appealed. 

Bige;low^  C.  J.  The  infirmity  of  the  plaintiff's  case  is  that  there  is 
nothing  from  which  the  court  can  infer  that  the  restriction  in  the 
deed  from  Downing  to  Boardman  was  inserted  for  the  benefit  of  the 
estate  now  owned  by  the  plaintiff.  If  it  appeared  that  the  parties  to 
that  conveyance  intended  to  create  or  reserve  a  right  in  the  nature 
of  a  servitude  or  easement  in  the  estate  granted,  which  should  be  at- 
tached to  and  be  deemed  an  appurtenance  of  the  whole  of  the  remain- 
ing parcel  belonging  to  the  grantor,  of  which  the  plaintiff's  land  forms 
a  part,  then  it  is  clear,  on  the  principles  declared  in  the  recent  decision 
of  Whitney  v.  Union  Railway,  11  Gray,  359,  that  the  plaintiff  would 
be  entitled  to  insist  on  its  enjoyment,  and  to  enforce  his  rights  by  a 


Ch.    2)  EQUITABLE    SERVITUDES.  99 

remedy  in  equity.  But  there  is  an  entire  absence  of  any  language  in 
the  deeds  under  which  the  parties  claim,  from'  which  it  can  be  fairly 
inferred  that  the  restriction  in  the  deed  to  the  defendant  against 
erecting  his  building  above  a  certain  height  was  intended  to  enure  to 
the  benefit  of  the  estate  now  owned  by  the  plaintiff.  The  restriction 
is  in  the  most  general  terms,  and  no  words  are  used  which  indicate 
the  object  of  the  grantor  in  inserting  it  in  the  deed.  Nor  is  there  any 
language  in  the  deeds  under  which  the  plaintiff  claims  title,  which  re- 
fers specifically  to  this  restriction;  or  from  which  any  intent  is  shown 
to  annex  the  benefit  of  this  particular  restriction  to  the  plaintiff's  es- 
tate. Generally,  when  such  a  right  or  privilege  is  reserved,  the  pur- 
pose intended  to  be  accomplished  by  it  is  stated  in  the  conveyance 
or  can  be  gathered  from  a  plan  referred  to  therein,  or  from  the  situa- 
tion of  the  property  with  reference  to  other  land  of  the  grantor.  All 
parties  then  take  with  notice  of  the  right  reserved  and  the  burden  or 
easement  imposed.  But  the  conveyances  in  the  present  case  contain 
no  such  clause,  nor  is  there  anything  in  the  terms  of  the  grant,  or  in 
the  circumstances  surrounding  the  parties  when  it  was  made,  to  lead 
to  an  inference  in  favor  of  the  claim  set  up  by  the  plaintiff.  For 
aught  that  appears,  it  might  have  been  intended  by  the  parties  for 
the  benefit  of  the  grantor  only  so  long  as  he  remained  the  owner  of 
any  of  the  land  of  which  that  conveyed  to  the  plaintiff  originally  form- 
ed a  part.  However  this  may  be,  it  is  certain  that  the  defendant  took 
his  grant  without  any  notice,  either  express  or  constructive,  that  this 
restriction  was  intended  for  the  benefit  of  the  plaintiff's  estate.  This 
is  the  material  distinction  between  the  case  at  bar  and  that  of  Whitney 
V.  Union  Railway,  above  cited.  And  it  is  vital  to  the  rights  of  the 
parties,  because,  as  the  case  stands,  the  plaintiff  is  not  entitled  to  avail 
himself  of  the  equitable  principle,  that  the  defendant  has  taken  his 
estate  with  notice  of  a  stipulation  for  the  benefit  of  the  estate  now 
owned  by  the  plaintiff,  which  in  equity  by  accepting  the  grant  the  de- 
fendant would  be  bound  to  observe.  We  are  therefore  of  opinion  that 
the  clause  in  the  deed  to  the  defendant,  creating  the  restriction  on  the 
enjoyment  of  his  estate,  must  be  construed  as  a  personal  covenant 
merely  with  the  original  grantor,  which  the  plaintiff  cannot  ask  to  have 
enforced  in  this  suit. 

Bill  DiSMissKi),  with  costs. 


100  SPECIFIC  PEEFOliMANCE  OF  CONTRACTS  (Part    I 


DICKENSON  V.  GRAND  JUNCTION  CANAL  CO. 

(Cases  in  Chancery,  The  Rolls  Court,  1852,  15  Beav.  260.) 

The  Master  of  the  Rolls.  .  .  .  The  object  of  the  suit  is  to 
restrain  the  Defendants,  the  Grand  Junction  Canal  Company,  from 
using  a  well  sunk  by  them  near  Tring,  in  Bucks,  at  a  place  called  the 
Cow  Roast  Lock,  to  compel  them  to  fill  up  this  well,  and  to  restrain 
them  from  excavating  any  other  well,  whereby  the  supply  or  flow  of 
water  in  the  stream  called  the  Bulbourne  may  be  obstructed  from  flow- 
ing down  to  the  Plaintiffs'  mill.     .     ,     . 

The  first  question  that  arises  under  this  state  of  circumstances  is, 
whether  this  is  such  a  contract,  as  this  Court  will  restrain  the  parties 
to  it  from  violating,  and  upon  this  I  cannot  entertain  the  slightest 
doubt.  The  consideration  for  it  was  valuable,  and  the  Company 
obtained  the  advantage  of  that  consideration  in  the  cessation  of  those 
continued  actions  by  which  they  were  harassed,  and  in  which,  up  to 
that  time,  they  had  failed,  and  had  had  to  pay  large  and  repeated 
damages. 

The  next  question  is,  whether  the  acts  of  the  Defendants  are  a 
violation  of  this  contract.  The  report  of  Mr.  Cubitt  shows  conclusive- 
ly, that  by  means  of  the  pvuiiping  at  the  well,  the  waters  are  diverted 
from  the  said  rivers ;  and  independently  of  the  decision  of  the  Court 
of  Exchequer,  I  should,  on  the  evidence  of  his  report,  have  entertained 
no  doubt  that  the  Company  had  committed  a  violation  of  this  contract 
and  of  this  Act  of  Parliament,  by  pumping  the  water  out  of  this  well 
into  the  summit  level  of  the  canal.  The  decision  of  that  Court,  however, 
on  the  case  sent  by  Lord  Langdale,  is  in  my  opinion  conclusive  on  this 
subject,  notwithstanding  the  arguments  I  have  had  addressed  to  me, 
to  distinguish  the  facts  there  stated  from  the  facts  in  evidence  before 
me. 

If  it  be  a  contract  duly  entered  into  between  the  parties,  it  is  no 
answer  to  a  violation  of  it  to  say,  that  it  will  not  inflict  any  injury 
upon  one  of  the  contracting  parties.  If  the  Plaintififs  have  purchased 
from  the  Company  a  right  to  preserve  the  waters  in  the  Rivers  Bul- 
bourne and  Gade  from  being  diverted  in  any  other  manner  than  as 
diverted  at  the  passing  of  the  Act  of  58  Geo.  3,  it  is  no  answer  to  them 


Ch.    2)  EQUITABLE    SERVITUDES.  101 

to  say,  that  the  diversion  proposed  will  not  he  injurious  to  them,  or 
even  to  prove  that  it  may  he  heneficial  to  them.  It  is  for  them  to 
judge  whether  the  agreement  shall  be  preserved,  so  far  as  they  are 
concerned,  in  its  integrity,  or  whether  they  shall  permit  it  to  be  violated. 

It  is  therefore,  in  my  opinion,  a  matter  of  no  moment  in  this  case, 
that  the  Plaintiffs  have  given  no  evidence  of  any  actual  damage  done 
to  them,  or  of  any  actual  diminution  of  water  at  their  mills.  Having 
established  that  the  acts  of  the  Defendants  are  a  violation  of  the  con- 
tract entered  into  between  them  and  the  Plaintififs,  and  a  violation 
of  the  Acts  of  Parliament  passed  to  carry  such  contract  into  efifect. 
the  Plaintififs  are  entitled  to  call  upon  this  Court  to  protect  them  in 
the  enjoyment  of  that  right  which  they  have  so  purchased,  and  this 
Court  is  bound  to  preserve  it  from  being  broken  in  upon. 

I  am  of  opinion,  therefore,  that  I  must  grant  a  perpetual  injunction 
to  restrain  the  Company  from  further  excavating  &c.  &c.,  and  that  the 
Defendants  must  pay  the  costs  of  this  suit. 


CLEGG  V.  HANDS. 

(Supreme  Court  of  Judicature,  1890,  44  Ch.   Div.   503.) 

Cotton,  L.  J.  .  .  •  The  covenant  in  this  case  is  that  the  said 
lessee  will  not  at  any  time  during  the  continuance  of  the  demise,  direct- 
ly or  indirectly,  buy,  receive,  sell,  or  dispose  of,  or  permit  to  be  bought, 
received,  sold,  or  disposed  of,  in  or  about  the  demised  premises,  any 
ales  or  stout  (other  than  best  stout)  other  than  such  "as  shall  have  been 
bona  fide  purchased  of  the  said  lessors,  or  from  them,  or  either  of 
them,  either  alone  or  jointly  with  any  other  person  or  persons  who  may 
hereafter  become  a  partner  or  partners  with  them  or  either  of  them.' 
It  is  said  that  these  latter  words  shew  that  the  covenant  was  not  in- 
tended to  extend  to  the  assigns  of  Clegg  &  Wright,  because  part  of  the 
definition  of  the  persons  who  are  included  in  the  expression  "lessors" 
is  repeated  here  in  terms  which  exclude  the  full  application  of  that 
definition.  But  I  cannot  think  that  that  is  so.  The  covenant,  reading 
it  by  the  light  of  the  definition,  was  entered  into  with  the  lessors, 
Clegg  &  Wright,  and  each  of  them,  and  the  heirs,  executors,  adminis- 
trators, and  assigns  of  them  and  each  and  every  of  them;  and  al- 


102  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    1 

though  it  perhaps  was  not  necessary  to  have  added  these  words  at  the 
end  of  the  covenant,  I  cannot  think  that  that  addition  prevents  the 
covenant  from  being  a  covenant  with  the  assigns  of  those  who  were 
the  grantors  of  the  lease  to  the  Defendants. 

But  then  it  is  said,  as  I  understand  the  argument,  that  it  can  only- 
have  been  intended  to  include  such  assigns  as  carry  on  the  business 
of  brewers  at  the  particular  brewery  which  was  assigned  to  Cain,  and 
where  the  business  of  brewing  is  no  longer  carried  on.  The  case  of 
Doe  V.  Reid,  10  B.  &  C.  849,  was  much  relied  upon  for  the  purpose 
of  that  construction,  but  it  was  a  case  where  the  language  was  dif- 
ferent, and  in  my  opinion  there  is  nothing  here  to  shew  such  an  inten- 
tion. Then  there  is  this  clause :  "Provided  they  or  he  shall  at  such 
time  deal  in  or  vend  such  liquors  as  aforesaid,  and  shall  be  willing  to 
supply  the  same  to  the  lessee  of  good  quality  and  at  the  fair  current 
market  price."  Well,  it  was  pointed  out  by  one  of  us  in  the  course  of 
the  argument,  that  there  is  some  protection  granted  here  to  the  pub- 
lican by  this  provision  that  the  beer  shall  be  of  good  quality,  and  that 
it  shall  be  supplied  at  the  fair  current  market  price. 

That,  in  my  opinion,  shews  clearly  that  it  was  not  intended  in  this 
case  to  restrict  the  benefit  of  the  covenant  to  the  persons  carried  on 
this  brewery  at  this  particular  place,  for  it  does  not  in  any  way  refer 
to  the  beer  which  is  to  be  provided,  as  being  beer  made  by  the  land- 
lords or  their  assigns.  The  words  are,  "Provided  they  or  he  shall  at 
such  time  deal  in  or  vend  such  liquors."  It  shows  that  there  was  no 
intention  whatever  to  stipulate  that  the  persons  entitled  to  the  bene- 
fit of  the  covenant  were  to  be  persons  who  made  beer.  It  was  not 
provided  that  they  should  continue  to  make  the  beer  they  were  sell- 
ing; but  it  was  provided  that  it  should  be  of  good  quality  and  be  sup- 
plied at  the  fair  current  market  price,  and  that  they  should  deal  in  and 
vend  beer.  Considerable  light  was  to  my  mind  thrown  upon  the  true 
intention  of  the  parties  by  what  was  put  before  us  by  Mr.  Collins 
in  his  reply,  that  at  the  time  the  covenant  was  entered  into  these  land- 
lords not  only  made  beer,  but  bought  beer,  and  supplied  those  who  were 
not  bound  by  any  restrictive  covenants  to  take  beer  from  them  alone. 
That,  I  think,  shews  what  they  were  intending  to  provide  for,  viz.,  not 
that  they  should  only  supply  beer  which  they  themselves  made,  but 
that  they  should  go  on  doing  what  they  were  then  doing,  supply 
beer  either  by  making  it,  or  by  buying  it,  so  long  as  they  were  able  to 
supply  it  of  good  quality  and  at  the  fair  market  price.     .     .     . 


Ch.  2)  EQUITABLE  SERVITUDES.  103 

But  then  it  is  said  that  this  Court  has  decided  that  the  doctrine  of 
Tulk  V.  Moxhay  will  not  be  extended  beyond  a  restrictive  covenant. 
Now,  in  Tulk  v.  Moxhay  the  covenant  was  not  in  its  terms  restrictive, 
but  it  implied  that  the  piece  of  ground  in  question  there  was  to  be  used 
only  as  an  ornamental  garden.  That  again  implied  that  the  purchaser 
was  not  to  build  on  it,  which  was  what  he  was  about  to  do.  In  this 
case,  even  if  the  covenant  was  in  form  a  contract  to  buy  all  beer  from 
the  Plaintiffs,  that  would  involve  a  negative  contract  that  he  should 
not  buy  his  beer  from  anybody  else ;  and  in  my  opinion  this  case  does 
not  come  within  the  rule  which  we  laid  down  in  the  case  of  Haywood 
V.  Brunswick  Permanent  Benefit  Building  Society,  8  Q.  B.  D.  403.  In 
that  case  land  had  been  granted  in  fee  in  consideration  of  a  rent -charge 
and  a  covenant  to  build  and  repair  buildings,  and  the  Court  refused  to 
enforce  the  covenant,  considering  the  doctrine  of  Tulk  v.  Moxhay 
not  applicable  to  the  case  of  a  covenant  which  was  not  in  its  nature 
restrictive,  and  could  only  be  enforced  by  making  the  owner  of  the  land 
put  his  hand  in  his  pocket.  In  my  opinion,  both  on  the  ground  that 
here  the  covenant  did  run  with  the  land,  and  also  on  the  ground  that  the 
doctrine  of  Tulk  v.  Moxhay  does  apply,  I  think  the  order  of  the 
Vice-Chancellor  is  right. 

lyiNDLEY,  L.  J.  .  .  .  Then  comes  a  question  as  to  whether  this 
contract  is  one  which  can  be  enforced  in  equity,  having  regard  to  the 
doctrine  relating  to  specific  performance  and  injunctions.  Mr.  Collins 
has  suggested  that,  although  this  covenant  is  negative  in  point  of  form, 
it  is  affirmative  in  substance,  and  that  therefore  an  injunction  ought 
not  to  be  granted.  But  when  you  look  at  the  whole  of  this  case,  you 
find  that  the  covenant,  which  he  suggests  is  affirmative,  really  involves 
a  negative  element  in  it.  If  you  treat  the  covenant  to  keep  open  this 
place  as  a  public-house  and  to  sell  beer  there  as  an  affirmative  covenant, 
you  cannot  treat  the  covenant  as  to  the  buying  of  beer  as  merely  an 
affirmative  covenant  to  buy  beer  of  the  lessors.  You  must  put  in  the 
words,  "and  the  lessors  exclusively."  If  you  get  that,  you  get  a  nega- 
tive portion  of  the  covenant  which  can  be  properly  enforced  consistent- 
ly with  the  doctrine  applicable  to  cases  of  this  kind;  and  therefore, 
whether  you  regard  it  as  an  affirmative  covenant  with  a  negative  ele- 
ment in  it,  or  whether  you  regard  it  as  split  up,  as  it  is  here,  into  these 
two  parts,  partly  affirmative  and  partly  negative,  that  negative  part  can 
be  properly  enforced. 


104  SPECIFIO  PERFOEMANCE   OF  CONTEACTS  (Part    1 

For  these  reasons  it  appears  to  me  that  the  decision  is  right,  and 
the  appeal  must  be  dismissed  with  costs. 


GOULD  V.  PARTRIDGE. 

(Supreme  Court  of  New  York,  1900,  52  N.  Y.  App.  Div.  40,  64  N.  Y.  Supp. 

870.) 

The  Phoenix  Mills  was  the  owner  of  a  valuable  water  privilege, 
as  well  as  of  the  means  and  appliances  for  utilizing  the  same.     It  was 
also  the  owner  of  a  tract  of  land  for  which  it  had  no  particular  use. 
To  meet  this  condition  of  affairs  it  subdivided  its  surplus  land  into 
parcels  and  then  sold  the  same  to  various  parties.     In  order,  however, 
to  enhance  the  value  of  the  land  thus  placed  upon  the  market,  and 
induce  purchasers  to  buy,  the  company  agreed  to   furnish  a  certain 
amount  of  power  with  each  parcel  sold.     As  a  consequence,  the  land 
with  this  incident  attached  to  it  found  ready  sale,  and  the  purchasers 
thereof  immediately  set  about  to  erect  buildings   for  manufacturing 
purposes  upon  their  respective  parcels,  in  reliance,  doubtless,  upon  the 
right  to  the  water  power  which  their  several  grants  secured  to  them. 
In  these  circumstances,  if,  as  claimed  by  the  plaintiff,  there  was  a  com- 
munity of  interest  or  a  privity  of  estate  between  the  original  grantor 
and  grantees,  the  covenant  made  by  the  former  would  unquestionably 
be  one  which  would  run  with  the  land  and  one  for  the  breach  of  which 
an  action  at  law  could  be  maintained  by  the  covenantee  or  his  grantees. 
But,  even  in  the  absence  of  any  community  of  interest  or  privity  of 
estate,  it  has  been  held  that  the  owners  of  land  may  by  agreement 
create  mutual  easements  for  the  benefit  of  each  other's  land,  which 
will  be  enforced  in  equity ;  that  an  easement  of  this  character  can  be 
created  by  grant,  and  that  the  right  to  its  enjoyment  will  in  like  manner 
pass  as  appurtenant  to  the  premises  in  respect  of  which  it  was  created. 
In  discussing  a  similar  proposition  in  the  American  note  to  Spencer's 
Case,  1  Smith,  Lead.  Cas.  (6th  Am.  Ed.)   167,  it  was  said:  "But  al- 
though the  covenant  when  regarded  as  a  contract,  is  binding  only  be- 
tween the  original  parties,  yet,  in  order  to  give  effect  to  their  intention, 
it  may  be  construed  by  equity  as  creating  an  incorporeal  hereditament 
(in  the  form  of  an  easement)  out  of  the  unconveyed  estate,  and  ren- 


Ol.    2)  EQUITABLE    SERVITUDES.  105 

dering  it  appurtenant  to  the  estate  conveyed ;  and,  when  this  is  the  case, 
subsequent  assignees  will  have  the  right  and  be  subject  to  the  obliga- 
tions which  the  title  or  liability  to  such  an  easement  creates."  .  .  . 
The  defendant  took  her  title  to  the  premises  owned  by  her  with 
actual  and  full  notice  of  the  covenant  in  the  Howe  deed,  and  of  all 
the  equities  arising  therefrom.  Moreover,  she  and  her  predecessors 
in  title  gave  practical  construction  to  the  language  and  obligations  of 
that  covenant  by  sustaining  the  burden  which  it  imposed  for  a  long 
term  of  years;  and  in  view  of  these  circumstances  it  would,  as  was 
said  by  Allen,  J.,  in  Trustees,  etc.,  v.  Lynch,  supra,  "be  unreasonable 
and  unconscientious  to  hold  (her)  absolved  from  the  covenant  in 
equity  for  the  technical  reason  assigned  that  it  did  not  run  with  the  land 
so  as  to  give  an  action  at  law."  We  think  the  interlocutory  judgment 
appealed  from  should  be  affirmed,  with  the  usual  leave  to  answer.     ,     . 


ROBERTS  V.  SCULL. 

(New  Jersey  Court  of  Chancery,  1899,  58  N.  J.  Eq.  396,  43  Atl.  583.) 

Grey,  V.  C.  .  .  .The  complainant  in  this  suit  is  the  owner  of  a 
house  and  lot  situate  on  the  east  side  of  United  States  avenue  in  At- 
lantic City.  She  alleges  that  forty  years  ago  one  Brown,  being  the 
holder  in  fee  of  a  tract  of  land  of  which  her  lot  formed  a  part,  opened 
a  street,  now  called  United  States  avenue,  and  built  two  houses  on  each 
side  of  it,  facing  on  said  avenue  and  set  back  from  the  street  or  proper- 
ty line  a  distance  of  thirty-two  feet,  and  afterwards  sold  lots  on  either 
side  of  said  avenue ;  and  that  in  each  of  the  deeds  conveying  those  lots 
there  was  inserted  a  condition  that  the  house  or  houses  to  be  built 
thereon  should  be  in  keeping  with  those  already  built  by  him  and  set 
back  a  distance  of  thirty-two  feet  from  the  property  line,  and  that  no 
stables  or  outbuildings  should  be  erected  on  any  of  said  lots;  and  that 
as  a  result  of  said  restrictions  United  States  avenue  has  been  built  up 
with  cottages  in  good  style,  and  said  lots  have  been  keep  free  from  all 
buildings  except  such  as  face  on  United  States  Avenue.     .     .     . 

It  appears  to  be  settled  law  in  the  state  that  restrictive  covenants 
of  the  character  set  forth  in  the  bill,  will  be  enforced  in  equity,  not 
only  against  the  original  grantee,  but  also  against  all  subsequent  pur- 


106  SPECIFIC   PERFOEMANCE   OF  CONTEACTS  (Part    1 

chasers  with  notice  of  the  covenant.  De  Gray  v.  Monmouth  Beach  Co., 
5  Dick.  Ch.  Rep.  329 ;  Hayes  v.  Waverly  &c.  Railroad  Co.,  6  Dick.  Ch. 
Rep.  345,  and  cases  there  cited. 

The  parties  who  may  enforce  such  restrictive  covenants  are  the 
original  grantors  with  whom  they  were  made  and  all  subsequent  pur- 
chasers of  the  lands  to  be  benefited  by  them.  The  parties  against 
whom  they  may  be  enforced  are  the  grantees  who  accept  deeds  contain- 
ing the  restrictions,  and  all  those  who  subsequently  purchase  the  re- 
stricted lands  with  notice  of  the  covenant. 

The  principle  upon  which  a  person  not  a  party  to  a  restrictive  cove- 
nant is  permitted  to  enforce  it,  is  based  upon  the  idea  that  the  sub- 
sequent purchaser  of  lands  to  be  benefited  by  the  enforcement  has 
made  his  purchase  and  paid  his  consideration  in  the  expectation  of  the 
benefit  to  accrue  to  the  land  bought,  from  the  observances  of  the  re- 
striction imposed  by  his  grantor  upon  the  use  of  the  lots  previously 
conveyed  to  the  covenantor,  and  no  injustice  is  worked  upon  the  cov- 
enantor or  his  assigns  with  notice  of  the  covenant  by  restraining  them 
from  using  the  land  in  a  manner  inconsistent  with  the  contract  under 
which  they  obtained  the  title  and  which  fixed  the  price  they  paid  with 
relation  to  the  restrictions  imposed.  Tulk  v.  Moxhay,  2  Phil.  774. 
That  is,  the  prior  purchaser  from  the  common  grantor,  by  reason  of 
the  restrictions  imposed,  paid  less  price  for  his  land ;  the  party  who  sub- 
sequently purchased  from  the  common  grantor  a  part  or  the  whole 
of  the  land  to  be  benefited  by  the  restrictions,  bought  in  consideration 
of  the  benefits  coming  to  his  lot  because  of  the  restrictions.  This  re- 
lation is  such  a  privity  as  supports  an  equity  in  the  subsequent  pur- 
chaser of  the  lot  benefited  by  the  covenant  to  enforce  it. 

But  this  rule,  while  operative  to  enable  a  subsequent  purchaser  of 
land  to  be  benefited  by  a  restrictive  covenant  to  enforce  it  against  the 
prior  purchaser,  who  made  it,  and  against  his  assigns,  with  notice  of 
it,  does  not  work  inversely  to  support  the  claim  of  a  prior  purchaser 
from  the  original  owner  to  enforce  a  restriction  imposed  by  the  latter 
upon  a  lot  subsequently  conveyed.  De  Gray  v.  Monmouth  Beach  Co., 
5  Dick.  Ch.  Rep.  329.  The  prior  purchaser  did  not  buy  in  expectation 
of  any  benefit  to  be  derived  from  the  subsequent  covenant  not  yet  in 
existence,  nor  did  the  subsequent  purchaser  make  his  covenant  with  the 
common  grantor  with  relation  to  lands  which  the  latter  had  previously 
conveyed  and  in  which  he  had  no  interest. 


Ch.  2)  EQUITABLE  SERVITUDES.  107 

111  order  to  entitle  prior  purchasers  from  a  common  vendor,  or  those 
claiming  under  them,  to  enforce  such  covenants,  it  must  be  shown 
that  they  are  parts  of  a  general  plan  adopted  for  the  development  and 
improvement  of  the  property  by  laying  it  out  in  streets  and  lots,  pre- 
scribing a  uniform  building  scheme,  regulating  size  and  style  of  houses, 
or  uses  to  which  the  buildings  may  be  put.  De  Gray  v.  Monmouth 
Beach  Co.,  supra.  When  there  is  such  a  general  plan  and  covenants 
imposing  uniform  restrictions,  each  purchaser,  as  he  buys  his  lot  and 
accepts  the  restrictive  covenant,  pays  his  purchase-money  in  consider- 
ation of,  and  relying  upon,  the  subsequent  execution  of  the  general 
plan  by  the  imposition  of  like  covenants  upon  succeeding  purchasers. 
This  equity  arises  in  favor  of  a  grantee  under  the  restriction  of  the 
uniform  plan,  as  well  as  against  the  original  owner  who  promulgates 
and  sells  lots  on  the  general  plan  and  attempts  to  make  subsequent  con- 
veyances in  avoidance  of  it,  as  against  a  grantee  who  accepts  a  deed 
with  the  restrictions,  and  does  acts  in  breach  of  them.       .     .     . 

There  is  a  suggestion  in  the  bill  that  there  was  such  a  general  plan 
of  improvement,  but  the  supporting  proof  depends  entirely  upon  the 
complainant's  unaided  deposition.  She  was  not  a  purchaser  from 
Brown,  the  common  grantor,  nor  does  she  appear  to  have  any  know- 
ledge of  his  original  design  in  laying  out  the  property.  vShe  testifies 
as  to  her  information  and  belief  as  of  the  time  when  she  purchased 
from  Ladner,  or  some  subsequent  grantee,  that  the  lot  north  of  her 
and  those  on  United  States  avenue  were  subject  to  covenants  "that  no 
dwelling-house  could  be  erected  on  any  of  said  lands  except  those  that 
front  on  United  States  avenue,  and  set  back  thirty-two  feet  from  said 

avenue." 

No  map  of  the  lots  is  shown  marking  the  building  line,  nor  is  there 

any  proof  of  any  action  by  the  common  grantor,  Brown,  indicating 
a  design  on  his  part  to  develop  the  land  upon  a  uniform  plan  of  which 
the  covenants  in  the  deed  of  Brown  to  Graham  for  the  defendant's  lot, 
fixing  the  building  line,  &c.,  formed  a  part. 

The  complainant  herself  does  not  appear  to  have  any  knowlcge 
upon  the  subject  save  from  hearsay.  The  coincidence  that  all  the 
deeds  conveying  any  portion  of  the  property  contained  the  same  cove- 
nants would  not,  if  it  were  true,  be  sufficient  of  itself  to  show  that  the 
covenant  made  by  Graham  on  receiving  his  deed  from  Brown  in  1888 
was  intended  to  be  for  the  benefit  of  Ladner's  lot,  who  had  bought 


108  SPECIFIC   PERFORMANCE    OF  CONTRACTS  (Part    1 

from  Brown  in  1882,  six  years  before.  Mulligan  v.  Jordan,  5  Dick.  Ch. 
Rep.  363. 

The  proof  submitted  does  not  support  the  claim  that  the  covenants 
were  part  of  a  general  building  plan.     .     .     . 


McCLURE  V.  LEAYCRAFT. 

(New  York  Court  of  Appeals,  1905,  183  N.  Y.  36,  75  N.  E.  961.) 

This  action  was  brought  to  restrain  the  defendant  from  erecting 
an  apartment  house  upon  premises  owned  by  him  situate  on  the  south- 
west corner  of  145th  street  and  St.  Nicholas  avenue  in  the  city  of 
New  York. 

Either  party  owns  land  nearly  adjacent  to  that  of  the  other  and  on 
the  same  block.  There  is  a  four-story  dwelling  designed  for  but  one 
family  standing  on  the  land  of  the  plaintiff,  while  the  premises  of  the 
defendant  are  vacant.  Both  parties  took  title  from  a  common  source 
and  subject  to  a  covenant,  made  November  9th,  1886,  against  the 
erection  at  any  time  upon  any  part  of  the  tract  to  which  the  lands  of 
the  respective  parties  belong  "of  any  buildings  except  brick  or  stone 
dwelling  houses"  or  "any  tenement,  apartment  or  community  house." 
On  the  8th  of  December,  1886,  the  covenant  was  so  modified  as  to  per- 
mit the  erection  of  churches  upon  the  tract  and  to  limit  the  period  of  re- 
straint to  twenty-five  years.  These  covenants  by  express  agreement 
ran  with  the  land  and  the  instruments  containing  the  same  were  duly 
recorded  as  conveyances  in  the  proper  office.  Shortly  before  the  com- 
mencement of  this  action  the  defendant  filed  plans  to  erect  and  had 
begun  the  erection  upon  his  premises  of  a  six-story  modern  apartment 
house,  "divided  into  forty-two  independent  and  separate  suites  of 
rooms  or  apartments,  each  suite  containing  a  complete  set  of  rooms  and 
improvements  such  as  are  usually  found  in  a  first-class  private  dwell- 
ing house." 

In  addition  to  the  foregoing  facts  the  trial  court  found  as  follows: 
"Tenth.  That  at  the  time  when  the  conveyances  hereinbefore  set  forth 
were  made  and  entered  into,  the  real  property  in  the  vicinity  of  the 
property  hereinbefore  described  was  occupied  exclusively  by  small 
private  dwellings,  and  was  classed  as  a  private  residential  district,  and 


Ch.  2)  EQUITABLE  SERVITUDES.  109 

such  houses  were  built  solely  for  one  family  and  occupied  by  one 
family,  and  there  were  no  places  of  business,  flats,  tenements  or  apart- 
ment houses  in  the  immediate  neighborhood  of  the  property  affected 
by  the  said  covenants. 

"Eleventh.  That  since  the  making  of  the  said  covenants  and  with- 
in the  period  of  about  ten  years  last  past  great  changes  have  occurred  in 
the  neighborhood  and  in  the  class  of  buildings  erected  upon  the  prop- 
erty in  said  neighborhood,  and  in  the  immediate  vicinity  of  the  prem- 
ises owned  by  the  plaintiff  and  the  defendant,  and  there  has  been  erect- 
ed upon  such  property,  including  the  three  corners  directly  opposite  to 
defendant's  premises,  large  apartment  houses  having  a  great  many 
apartments  therein,  several  on  each  floor  and  several  stories  in  height, 
and  which  are  occupied  on  the  ground  floor  by  places  of  business 
and  used  for  business  purposes,  numerous  flats  or  tenement  houses 
have  been  built  on  the  block  fronting  on  One  Hundred  and  Forty-fifth 
street  between  St.  Nicholas  and  Bradhurst  avenues,  which  is  in  the 
vicinity  of  plaintift''s  and  defendant's  property." 

"Fourteenth.  That  the  erection  upon  the  said  land  of  the  said  apart- 
ment house  which  the  defendant  proposes  to  erect  thereon  will  not  de- 
crease the  fee  value  of  the  plaintiff's  premises  or  of  the  land  and  dwell- 
ings within  the  tract  hereinbefore  described,  but  will  increase  the  value 
thereof,  and  the  use  of  the  same  as  an  apartment  house  will  not  make 
the  neighborhood  undesirable  nor  decrease  the  value  of  the  adjoining 
property. 

"Fifteenth.  That  the  change  which  has  taken  place  in  the  character 
of  the  neighborhood  has  made  the  property,  including  the  tract  here- 
inbefore described,  especially  the  land  owned  by  the  defendant,  unde- 
sirable for  the  erection  of  a  private  dwelling  thereon. 

"Sixteenth.  That  by  reason  of  the  change  in  the  character  of  the 
neighborhood  and  of  the  immediate  vicinity  of  plaintiff's  property  and 
defendant's  property  the  same  has  been  so  altered  as  to  render  inex- 
pedient the  observation  of  the  said  covenants,  and  it  would  be  inequi- 
table to  enforce  the  covenants  hereinbefore  set  forth  against  the  de- 
fendant, as  the  enforcement  of  the  same  would  cause  him  great  dam- 
age and  would  not  benefit  the  owners  of  the  adjoining  property." 

The  complaint  was  dismissed  on  the  merits,  for  the  reason,  among 
others,  "that  the  character  and  condition  of  the  neighborhood  have  so 
changed  since  the  making  of  the  said  agreements  that  it  would  be  in- 
equitable to  enforce  a  covenant  prohibiting  the  erection  of  a  structure 


110  SPECIFIC   PERFORMANCE   OF  COTTTEACTS  (Pai't    I 

such  as  the  defendant  proposes  to  erect  and  equitable  reHef  en- 
joining the  defendant  from  erecting  the  said  structure  should  be  re- 
fused." 

Vann,  J.  .  .  .  Assuming,  therefore,  that  the  defendant  was 
about  to  violate  the  covenant,  the  question  is  whether  upon  the  facts 
found  and  approved  by  the  courts  below  relating  to  the  radical  change 
in  the  situation  of  the  property  affected  by  the  covenant,  a  court  of 
equity  was  bound  to  refuse  equitable  relief  in  the  form  of  an  injunction 
and  to  leave  the  injured  party  to  recover  his  damages  in  an  action  at 
law.  If  the  granting  or  withholding  of  a  permanent  injunction  is 
within  the  absolute  discretion  of  the  Supreme  Court,  the  exercise  of 
that  discretion  by  the  Appellate  Division  in  favor  of  the  plaintiff  is 
beyond  our  power  to  review ;  but  if  the  facts  found  compel  the  con- 
clusion, as  matter  of  law,  that  an  injunction  should  be  refused,  as  in- 
equitable, the  order  of  reversal  was  wrong  and  the  judgment  rendered 
by  the  trial  court  should  be  restored. 

While  a  temporary  injunction  involves  discretion,  a  permanent 
injunction  does  not  when  the  facts  conclusively  show  that  it  would 
be  inequitable  and  unjust.  A  court  of  equity  will  not  do  an  inequitable 
thing.  It  is  not  bound  by  the  rigid  rules  of  the  common  law,  but  is 
founded  to  do  justice,  when  the  courts  of  law,  with  their  less  plastic 
remedies,  are  unable  to  afford  the  exact  relief  which  the  facts  require. 
Its  fundamental  principle,  as  its  name  implies,  is  equity.  It  withholds 
its  remedies  if  the  result  wovild  be  unjust,  but  freely  grants  them  to 
prevent  injustice  when  the  other  courts  are  helpless.  It  cannot  set 
aside  a  binding  contract,  but  when  the  effect  would  be  inequitable 
owing  to  facts  arising  after  the  date  of  the  agreement  and  not  within 
the  contemplation  of  the  parties  at  the  time  it  was  made,  it  refuses  to 
enforce  the  contract  and  remands  the  party  complaining  to  his  remedy 
at  law  through  the  recovery  of  damages. 

These  principles  were  applied  by  this  court  in  an  important  case 
which  we  regard  as  analogous  and  controlling  (Trustees  of  Columbia 
College  V.  Thacher,  87  N.  Y.  311).  In  that  case  adjoining  landowners 
in  the  city  of  New  York  had  entered  into  reciprocal  covenants  restrict- 
ing the  use  of  their  respective  lands  to  the  sole  purpose  of  a  private 
residence  and  expressly  excluding  "any  kind  of  manufactory,  trade  or 
business  whatsoever."  After  the  lapse  of  nearly  twenty  years  the  de- 
fendant permitted  a  building  upon  his  land,  which  was  bound  by  the 


Ch.    2)  EQUITABLE    SERVITUDES.  HI 

covenant,  to  be  used  lor  the  business  of  a  tailor,  a  milliner,  an  insur- 
ance agent,  a  dealer  in  newspapers  and  tobacconist.  After  commence- 
ment of  an  action  by  the  other  landowner  to  restrain  such  use  an  elevat- 
ed railway  was  built  and  a  station  located  in  the  street  in  front  of  the 
premises  of  both  parties.  It  was  found  as  a  tact  that  the  "railway  and 
station  affect  the  premises  injuriously  and  render  them  less  profitable 
for  the  purpose  of  a  dwelling  house,  but  do  not  render  their  use  for 
business  purposes  indispensable  to  their  practicable  and  profitable  use 
and  occupation.  The  said  railway  and  station,  however,  do  not  in- 
juriously aft'ect  all  the  property  fronting  on  Fiftieth  street  and  in- 
cluded in  the  said  covenant,  but  only  a  comparatively  small  part  there- 
of." 

The  trial  court  awarded  a  permanent  injunction  and  the  General 
Term  aftirmed  the  judgment,  but  the  Court  of  Appeals  reversed  and 
dismissed  the  complaint  on  the  ground  that  a  contingency,  not  within 
the  contemplation  of  the  parties,  had  frustrated  the  scheme  devised  by 
them  and  rendered  the  enforcement  of  the  covenant  oppressive  and 
inequitable. 

This  court  obviously  held  that  an  injunction,  under  the  circumstances, 
was  not  within  the  absolute  discretion  of  the  Supreme  Court,  for 
otherwise,  according  to  its  uniform  rule  of  action,  it  would  not  have 
reversed  the  judgment  or  dismissed  the  complaint.  The  opinion  of 
Judge  Danforth,  concurred  in  by  all  the  members  of  the  court,  declared 
that  there  was  a  clear  breach  of  the  covenant  which,  under  ordinary 
circumstances,  would  entitle  the  plaintiff  to  an  injunction,  but,  he  said, 
"though  the  contract  was  just  and  fair  when  made,  the  interference 
of  the  court  should  be  denied  if  subsequent  events  have  made  perform- 
ance by  the  defendant  so  onerous  that  its  enforcement  would  im- 
pose great  hardship  upon  him  and  cause  little  or  no  benefit  to  the 
plaintiff.  (Willard  v.  Tayloe,  8  Wall.  557;  Thomson  v.  Harcourt, 
case  66,  p.  415,  vol  2,  Brown's  Parliamentary  Reports;  Davis  v.  Hone, 
2  Sch.  &  Lef.  340;  Baily  v.  De  Crespigny,  L.  R.  (4  Q.  B.)  180;  Clarke 
V.  Lockport  and  Niagara  Falls  Railroad  Company,  18  Barb.  350)." 

After  reviewing  the  authorities  cited,  the  learned  judge  continued: 
"In  the  case  before  us,  the  plaintiffs  rely  upon  no  circumstance  of 
equity,  but  put  their  claim  to  relief  upon  the  covenant  and  the  violation 
of  its  conditions  by  the  defendant.  They  have  established,  by  their 
complaint  and  proof,  a  clear  legal  cause  of  action.     If  damages  have 


]12  SPECIFIC   PERFOEMANCE   OF  CONTEACTS  (Part    1 

been  sustained,  they  must,  in  any  proper  action,  be  allowed.  But  on  the 
other  hand,  the  defendant  has  exhibited  such  change  in  the  condition 
of  the  adjacent  property,  and  its  character  for  use,  as  leaves  no  ground 
for  equitable  interference  if  the  discretion  of  the  court  is  to  be  govern- 
ed by  the  principles  I  have  stated,  or  in  the  cases  which  those  principles 
have  controlled.  .  .  .  The  road  was  authorized  by  the  legisla- 
ture, and,  by  reason  of  it,  there  has  been  imposed  upon  the  property  a 
condition  of  things  which  frustrates  the  scheme  devised  by  the  parties, 
and  deprives  the  property  of  the  benefit  which  might  otherwise  accrue 
from  its  observance.  This  new  condition  has  already  affected,  in 
various  ways  and  degrees,  the  uses  of  property  in  its  neighborhood,  and 
property  values.  It  has  made  the  defendant's  property  unsuitable 
for  the  use  to  which  by  the  covenant  of  his  grantor,  it  was  appropriat- 
ed, and  if,  in  face  of  its  enactment  and  the  contingencies  flowing  from 
it,  the  covenant  can  stand  anywhere,  it  surely  cannot  in  a  court  of 
equity." 

This  case  was  followed  in  Stokes  v.  Stokes  (155  N.  Y.  581,  590)  ; 
Amerman  v.  Deane  (132  N.  Y.  335,  359)  ;  Conger  v.  N.  Y.,  W.  S.  & 
B.  R.  R.  Co.  (120  N.  Y.  29,  32)  ;  Page  v.  Murray  (46  N.  J.  Eq.  325, 
331).  (See,  also,  Jewell  v.  Lee,  96  Mass.  145;  Taylor  v.  Longworth, 
14  Peters,  172,  174;  Duke  of  Bedford  v.  Trustees  British  Museum,  2 
My.  &  K.  552;  Sayers  v.  Collyer,  h.  R.  (24  Ch.  Div.)  170). 

So  long  as  the  Columbia  College  case  stands,  the  judgment  appealed 
from  cannot,  for  the  same  principle  controls  both.  In  each  the  changed 
condition  was  wholly  owing  to  the  lawful  action  of  third  parties,  which 
made  the  allowance  of  an  injunction  inequitable  and  oppressive.  In- 
deed, an  injunction  in  the  case  before  us  would  be  more  oppressive 
than  in  the  case  cited,  for  it  is  expressly  found,  and  the  finding  is 
final  here,  that  the  proposed  erection  would  actually  increase  the  value 
of  the  plaintiff's  premises,  while  the  enforcement  of  the  covenant, 
without  benefiting  any  one,  would  cause  great  damage  to  the  de- 
fendant. It  is  a  reasonable  inference  from  the  evidence  that  the  rent 
roll  of  the  defendant's  land,  with  such  dwelling  houses  on  it  as  would 
rent  to  the  best  advantage,  would  not  exceed  $4,500  a  year,  while  an 
apartment  house  such  as  he  proposes  to  erect  would  rent  for  over 
$40,000  a  year. 

Nineteen  of  the  twenty-five  years  which  bounded  the  life  of  the 
covenant  in  question  have  passed,  and  the  object  of  the  parties  in 


Ch.    2)  EQUITABLE    SEEVITITJES.  11 


o 


making  it  has  been  defeated  by  the  unexpected  action  of  persons  not 
under  the  control  of  the  defendant.  Under  the  circumstances  now  ex- 
isting the  covenant  is  no  longer  effective  for  the  purpose  in  view  by 
the  parties  when  they  made  it,  and  the  enforcement  thereof  cannot  re- 
store the  neighborhood  to  its  former  condition  by  making  it  desirable 
for  private  residences.  If  the  building  restriction  were  of  substantial 
value  to  the  dominant  estate  a  court  of  equity  might  enforce  it  even 
if  the  result  would  be  a  serious  injury  to  the  servient  estate,  but  it  will 
not  extend  its  strong  arm  to  harm  one  party  without  helping  the  other, 
for  that  would  be  unjust.  An  injunction  that  bears  heavily  on  the  de- 
fendant without  benefiting  the  plaintiff  will  always  be  withheld  as 
oppressive.  No  injustice  is  done,  for  the  damages  sustained  can  be 
recovered  in  an  action  at  law,  and  the  material  change  of  circumstances 
so  affects  the  interests  of  the  parties  as  to  make  that  remedy  just  to 
both.     .     .     . 


BREWER  V.  MARSHALL  AND  CHEESEMAN. 

(New  Jersey  Court  of  Chancery,   1868,   19  N.  J.    Eq.   537.) 

The  injunction  in  this  case  restrains  the  defendant,  Marshall,  from 
selling  or  removing  from  the  farm  conveyed  to  him  by  the  defendant, 
Cheeseman,  known  as  the  Swope  farm,  any  marl,  and  from  digging  any 
marl  on  it  except  for  the  use  of  the  farm.  The  defendants  have  filed 
their  answer,  and  move  to  dissolve  the  injunction.     .     .     . 

The  Chief  Justice.  .  .  .  George  Cheeseman  was  originally 
the  owner  in  fee  of  the  several  tracts  of  land  now  respec- 
tively owned  by  the  appellant,  Mr.  Brewer,  and  by  the 
respondent,  Mr.  Marshall;  that  on  the  23rd  day  of  February,  1841, 
he  conveyed  to  the  grantor  of  the  appellant,  the  lands  now  held  by 
the  latter,  and  also,  by  the  same  instrument,  another  tract  of  twenty- 
eight  acres,  and  that  in  this  deed  there  was  a  covenant  in  the  followino- 
words,  viz. :  "Also,  the  said  George  Cheeseman,  his  heirs  or  assigns, 
are  not  to  sell  any  marl,  by  the  road  or  quantity,  from  off  his  premises 
adjoining  the  above  property."  The  tract  described  in  this  covenant  as 
that  to  which  the  restriction  was  to  apply,  is  now  owned  by  the  re- 

1  Eq.— 8 


114  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    1 

spondent,  Mr.  Marshall,  who,  notwithstanding  the  covenant  just  quot- 
ed, has  exercised,  and  still  claims,  the  right  to  sell  marl  therefrom.     .     . 

From  this  view  of  the  authorities,  I  am  entirely  satisfied  that  a 
court  of  equity  will  sometimes  impose  the  burthen  of  a  covenant  relat- 
ing to  lands  on  the  alienee  of  such  lands,  on  a  principle  altogether  aside 
from  the  existence  of  an  easement  or  the  capacity  of  such  covenant  to 
adhere  to  the  title.  So  far  I  think  the  law  is  not  in  doubt,  and  the 
only  question  in  this  case,  which  1  have  regarded  as  possessed  of  any 
material  difficulty,  is  whether  the  covenant  now  in  controversy  is  em- 
braced within  the  proper  limits  of  this  branch  of  equitable  jurisdiction. 
The  inquiry  is,  have  courts  of  equity  ever  gone  the  length  of  enforcing 
contracts  similar  to  the  one  now  before  us?     .     .     . 

But,  in  the  second  place  it  seems  to  me  that  this  covenant,  on  which 
this  suit  rests,  is  illegal  in  itself^  and  absolutely  void.  The  substance 
of  this  covenant  is,  that  neither  the  former  owner  of  these  premises, 
nor  his  assigns,  shall  sell  by  the  quantity  any  marl  taken  from  these 
lands.  This  is  not  a  restriction  on  the  use  of  the  land,  for  the  marl 
can  be  dug  up  and  used  upon  the  land ;  but  the  restriction  is  on  the  sale 
of  the  marl  after  it  shall  have  been  dug  up.  Marl  of  course  is  an 
article  of  merchandise  and  the  covenant  restrains  traffic  in  that  article. 
It  prohibits  the  sale  of  it  at  any  time,  in  any  market,  either  by  the 
owner  of  the  lands  or  by  his  assigns.  Now  it  seems  to  me  that  this  is 
a  plain  contract  "against  trade  and  traffic,  and  bargaining  and  con- 
tracting between  man  and  man."  That  it  is  the  rule  that  all  general 
restraints  of  trade  are  illegal,  has  never  been  doubted  since  the  famous 
opinion  of  Lord  Macclesfield,  in  Mitchel  v.  Reynolds,  reported  in  1  P. 
Wms.  181.  And  the  development  of  this  rule,  and  its  application  under 
a  variety  of  conditions,  can  be  traced  in  the  series  of  decisions  which 
have  been  carefully  collected  and  intelligently  commented  on  in  the 
notes  to  the  case  just  cited  in  1  vSmith's  L.  C.  182.  The  reason  upon 
which  this  rule  is  founded,  is  thus  expressed  by  Mr.  Justice  Best,  in 
Homer  v.  Ashford,  3  Bing.  326;  "The  law  will  not  permit  any  one 
to  restrain  a  person  from  doing  what  his  own  interest  and  the  public 
welfare  require  that  he  should  do.  Any  deed,  therefore,  by  which 
a  person  binds  himself  not  to  employ  his  talents,  his  industry,  or  his 
capital,  in  any  useful  undertaking  in  the  kingdom,  would  be  void." 
And  so  far  has  this  principle  been  carried,  that  even  in  cases  in  which 
the  restraint  sought  to  be  imposed  is  only  partial,  it  has  been  repeatedly 


oil.    2)  EQUITABLE    SERVITUDES.  115 

held  that  such  agreement  will  be  void,  unless  it  be  reasonable,  and  that 
no  such  agreement  can  be  reasonable  in  which  the  restraint  imposed  on 
the  one  party  is  larger  than  is  necessary  for  the  protection  of  the  other. 
Horner  v.  Graves,  7  Bing.  743.  Tested  by  these  principles  the  covenant 
in  question  appears  to  be  destitute  of  all  the  essentials  of  a  legal  agree- 
denied.  (Ewertsen  v.  Gerstenberg,  186  111.  344;  Curtis  v.  Rubin,  supra). 
ment.  The  restraint  it  imposes  is  general  both  as  to  time,  place,  and 
persons.  It  transcends,  by  far,  the  limits  of  utility  to  the  covenantee. 
I  cannot  say  that  this  covenant  is  legal,  any  more  than  I  can  say  that  a 
covenant  on  the  part  of  a  farmer  not  to  sell,  nor  permit  any  of  the 
future  owners  of  his  farm  to  sell,  any  grain  to  be  grown  on  his  farm, 
would  be  legal.  I  think  all  such  engagements  are  nugatory  as  opposed 
to  the  valuable  rule  of  law  just  referred  to,  and  which  is  designed,  and 
is  so  well  adapted,  to  promote  commerce  by  preventing  the  imposition 
of  all  unnecessary  trammels,  either  on  labor  or  on  property.  In  this 
view,  I  am  prepared  to  say  that  the  complainant's  case  has  no  legal 
foundation. 


DR.  MILES  MEDICAL  CO.  v.  PARK  e^  SONS  CO. 

(United  States  Supreme  Court,  1910,  220  U.  S.  373,  394.) 

Mr,  Justice:  Hughes. — The  complainant,  a  manufacturer  of 
proprietary  medicines  which  are  prepared  in  accordance  with  secret 
formulas,  presents  by  its  bill  a  system,  carefully  devised,  by  which  it 
seeks  to  maintain  certain  prices  fixed  by  it  for  all  the  sales  of  its  pro- 
ducts both  at  wholesale  and  retail.  Its  purpose  is  to  establish  minimum 
prices  at  which  sales  shall  be  made  by  its  vendees  and  by  all  subsequent 
purchasers  who  traffic  in  its  remedies.  Its  plan  is  thus  to  govern  direct- 
ly the  entire  trade  in  the  medicines  it  manufactures,  embracing  inter- 
state commerce  as  well  as  commerce  within  the  States  respectively. 
To  accomplish  this  result  it  has  adopted  two  forms  of  restrictive  agree- 
ments limiting  trade  in  the  articles  to  those  who  become  parties  to  one 
or  the  other.  The  one  sort  of  contract  known  as  "Consignment  Con- 
tract— Wholesale,"  has  been  made  with  over  four  hundred  jobbers  and 
wholesale  dealers,  and  the  other,  described,  as  "Retail  Agency  Con- 
tract," with  twenty-five  thousand  retail  dealers  in  the  United  States. 


116  SPECIFIC    PERFORMANCE    OF  CONTRACTS  (Part    1 

The  defendant  is  a  wholesale  drug  concern  which  has  refused  to 
enter  into  the  rec[uircd  contract,  and  is  charged  with  procuring  medi- 
cines for  sale  at  "cut  prices"  by  inducing  those  who  have  made  the 
contracts  to  violate  the  restrictions.  The  complainant  invokes  the  es- 
tablished doctrine  that  an  actionable  wrong  is  committed  by  one  who 
maliciously  interferes  with  a  contract  between  two  parties  and  induces 
one  of  them  to  break  that  contract  to  the  injury  of  the  other  and  that, 
in  the  absence  of  an  adequate  remedy  at  law,  equitable  relief  will  be 
granted.  Angle  v.  Chicago,  St.  Paul,  Minneapolis  &  Omaha  Railway 
Co.,  151  U.  S.  1  ;  Bitterman  v.  Louisville  &  Nashville  Railroad,  207 
U.  S.  205. 

The  principal  question  is  as  to  the  validity  of  the  restrictive  agree- 
ments.     .     .     . 

The  present  case  is  not  analogous  to  that  of  a  sale  of  good  will,  or 
of  an  interest  in  a  business,  or  of  the  grant  of  a  right  to  use  a  process 
of  manufacture.  The  complainant  has  not  parted  with  any  interest  in  its 
business  or  instrumentalities  of  production.  It  has  conferred  no  right 
by  virtue  of  which  purchasers  of  its  products  may  compete  with  it. 
It  retains  complete  control  over  the  business  in  which  it  is  engaged, 
manufacturing  what  it  pleases  and  fixing  such  prices  for  its  own  sales 
as  it  may  desire.  Nor  are  we  dealing  with  a  single  transaction,  con- 
ceivably unrelated  to  the  public  interest.  The  agreements  are  designed 
to  maintain  prices,  after  the  complainant  has  parted  with  the  title  to  the 
articles,  and  to  prevent  competition  among  those  who  trade  in  them. 

The  bill  asserts  the  importance  of  a  standard  retail  price  and  al- 
leges generally  that  confusion  and  damage  have  resulted  from  sales 
at  less  than  the  prices  fixed.  But  the  advantage  of  established  retail 
prices  primarily  concerns  the  dealers.  The  enlarged  profits  which 
would  result  from  adherence  to  the  established  rates  would  go  to 
them  and  not  to  the  complainant.  It  is  through  the  inability  of  the  fa- 
vored dealers  to  realize  these  profits,  on  account  of  the  described  com- 
petition, that  the  complainant  works  out  its  alleged  injury.  If  there  be 
an  advantage  to  a  manufacturer  in  the  maintenance  of  fixed  retail 
prices,  the  question  remains  whether  it  is  one  which  he  is  entitled  to 
secure  by  agreements  restricting  the  freedom  of  trade  on  the  part  of 
dealers  who  own  what  they  sell.  As  to  this,  the  complainant  can  fare 
no  better  with  its  plan  of  identical  contracts  than  could  the  dealers 
themselves  if  they  formed  a  combination  and  endeavored  to  establish 


Ch.    2)  EQUITABLE    SERVITUDES.  117 

the  same  restrictions,  and  thus  to  achieve  the  same  result,  by  agreement 
with  each  other.  If  the  immediate  advantage  they  would  thus  obtain 
would  not  be  sufficient  to  sustain  such  a  direct  agreement,  the  asserted 
ulterior  benefit  to  the  complainant  cannot  be  regarded  as  sufficient  to 
support  its  system. 

But  agreements  or  combinations  between  dealers,  having  for  their 
sole  purpose  the  destruction  of  competition  and  the  fixing  of  prices, 
are  injurious  to  the  public  interest  and  void.  They  are  not  saved  by 
the  advantages  which  the  participants  expect  to  derive  from  the  en- 
hanced price  to  the  consumer.  People  v.  Sheldon,  139  N.  Y,  251 ; 
Judd  V.  Harrington,  139  N.  Y.  105;  People  v.  Milk  Exchange,  145  N. 
Y.  267 ;  United  States  v.  Addyston  Pipe  &  Steel  Co.,  85  Fed.  Rep.  271 ; 
bn  app.  175  U.  S.  211  ;  Montague  &  Co.  v.  Lowry,  193  U.  S.  38;  Chap- 
in  V.  Brown,  83  Iowa,  156;  Craft  v.  McConoughy,  79  Illinois,  346;  W. 
H.  Hill  Co.  V.  Gray  &  Worcester,  127  N.  W.  Rep.  (Mich.)  803. 

The  complainant's  plan  falls  within  the  principle  which  condemns 
contracts  of  this  class,  it,  in  effect,  creates  a  combination  for  the 
prohibited  purposes.  No  distinction  can  properly  be  made  by  reason 
of  the  particular  character  of  the  commodity  in  question.  It  is  not  en- 
titled to  special  privilege  or  immunity.  It  is  an  article  of  commerce 
and  the  rules  concerning  the  freedom  of  trade  must  be  held  to  apply 
to  it.  Nor  does  the  fact  that  the  margin  of  freedom  is  reduced  by  the 
control  of  production  make  the  protection  of  what  remains,  in  such  a 
case,  a  negligible  matter.  And  where  commodities  have  passed  into 
the  channels  of  trade  and  are  owned  by  dealers,  the  validity  of  agree- 
ments to  prevent  competition  and  to  maintain  prices  is  not  to  be  de- 
termined by  the  circumstance  whether  they  were  produced  by  several 
manufacturers  or  by  one,  or  whether  they  were  previously  owned  by 
one  or  by  many.  The  complainant  having  sold  its  product  at  prices 
satisfactory  to  itself,  the  public  is  entitled  to  whatever  advantage  may 
be  derived  from  competition  in  the  subsequent  traffic.     . 


WHITNEY  V.  UNION  RAILWAY  COMPANY. 

(Supreme  Court  of  Massachusetts,  1858,   11   Gray  359.) 

Bill  in  equity,  filed  at  April  term   1857,  alleging  that  the  plaintiff 
for  forty  years  had  been  seised  in  fee  of  certain  lands  in  Cambridge; 


118  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    1 

that  she  had  incurred  great  expense  in  procuring  a  survey  and  plans 
thereof,  and  constructing  and  grading  streets  thereon,  intending  the 
same  for  private  residences;  that  on  the  10th  of  September  1851  she 
sold  and  conveyed  by  warranty  deed  (duly  recorded)  to  Artemas 
White  a  lot  of  this  land,  subject  to  these  restrictions :  "That  if  the  said 
Artemas  White,  his  heirs  or  assigns,  shall  suffer  any  building  to  stand 
or  be  erected  within  ten  feet  of  Lambert  Avenue,  or  shall  use  or  fol- 
low, or  suffer  any  person  to  use  or  follow,  upon  any  part  thereof,  the 
business  of  a  taverner,  or  any  mechanical  or  manufacturing,  or  any 
nauseous  or  offensive  business  whatever,  then  the  said  grantor,  or  any 
person  or  persons. at  any  time  hereafter,  who  at  the  time  then  being 
shall  be  a  proprietor  of  any  lot  of  land,  represented  upon  said  plan,  east 
of  lot  No.  27  and  north  of  Lambert  Avenue,  shall  have  the  right,  afteV 
sixty  days'  notice  thereof,  to  enter  upon  the  premises  with  his,  her  or 
their  servants,  and  forcibly,  if  necessary,  to  remove  therefrom  any 
building  or  buildings  erected  or  used  contrary  to  the  above  restrictions, 
and  to  abate  all  nuisances,  without  being  liable  to  any  damages  there- 
for, except  such  as  may  be  wantonly  and  unnecessarily  done." 

The  bill  further  alleged  that  White  erected  a  stable  on  this  lot,  and 
kept  horses  for  hire  and  at  livery,  against  the  remonstrance  of  the 
plaintiff,  and  to  her  nuisance  and  injury.       .     .     . 

The  bill  prayed  for  an  injunction  to  restrain  the  defendants  from 
erecting  additional  stables,  or  laying  rails  or  constructing  a  turntable  in 
the  street,  or  keeping  a  stable  for  horses  upon  the  premises,  and  for 
an  abatement  of  these  nuisances  .... 

BiGKLOW,  J. — The  claim  of  the  plaintiff  to  equitable  relief 
rests  mainly  on  the  validity  of  the  restrictions  contained  in  her  deed 
to  Artemas  White  of  September  10th  1851,  under  which  the  defendants 
hold  the  estate  described  in  the  bill.  By  the  facts  stated  in  the  bill 
and  admitted  by  the  demurrer,  it  appears  that  the  plaintiff  was  origi- 
nally the  owner  in  fee  of  a  large  tract  of  land,  which  she  caused  to  be 
surveyed  and  laid  out  in  lots,  with  suitable  ways  or  streets  affording 
convenient  access  thereto,  intending  to  sell  them  to  be  used  and  occu- 
pied by  private  dwellings.  One  of  these  lots  she  sold  and  conveyed  to 
White  by  the  deed  above  mentioned,  containing  the  clause  as  to  the  use 
and  occupation  of  the  premises,  which  is  fully  stated  in  the  bill.  This 
lot  by  mesne  conveyances  has  become  vested  in  the  defendants.  The 
plaintiff  still  continues  the  owner  of  a  part  of  the  tract  originally  laid 
out  by  her,  and  occupies  a  dwelling  house  thereon,  nearly  opposite  to 


Cll.    2)  EQUITABLE    SERVITUDES.  119 

the  lot  now  owned  by  the  defendants.  She  was  therefore  the  original 
grantor  by  whom  the  restrictions  were  created,  and,  as  the  owner  and 
occupier  of  a  part  of  the  estate  out  of  which  the  land  owned  by  the 
defendants  was  granted,  and  for  the  benefit  and  advantage  of  which 
the  restrictions  were  imposed,  she  has  a  present  right  and  interest  in 
their  enforcement.  The  purpose  of  inserting  them  in  the  deed  is  mani- 
fest. It  was  to  prevent  such  a  use  of  the  premises  by  the  grantee  and 
those  claiming  under  him,  as  might  diminish  the  value  of  the  residue 
of  the  land  belonging  to  the  grantor,  or  impair  its  eligibility  as  sites  for 
private  residences.  That  such  a  purpose  is  a  legitimate  one,  and  may 
be  carried  out,  c'onsistently  with  the  rules  of  law,  by  reasonable  and 
proper  covenants,  conditions  or  restrictions,  cannot  be  doubted.  Every 
owner  of  real  property  has  the  right  so  to  deal  with  it,  as  to  restrain 
its  use  by  his  grantees  within  shch  limits  as  to  prevent  its  appropriation 
to  purposes  which  will  impair  the  value  or  diminish  the  pleasure  of  the 
enjoyment  of  the  land  which  he  retains.  The  only  restriction  on  this 
right  is,  that  it  shall  be  exercised  reasonably,  with  a  due  regard  to  pub- 
lic policy,  and  without  creating  any  unlawful  restraint  of  trade.  Nor 
can  there  be  any  doubt  that  in  whatever  form  such  a  restraint  is  placed 
on  real  estate  by  the  terms  of  a  grant,  whether  it  is  in  the  technical 
form  of  a  condition  or  covenant,  or  of  a  reservation  or  exception  in  the 
deed,  or  by  words  which  give  to  the  acceptance  of  the  deed  by  the 
grantee  the  force  and  effect  of  a  parol  agreement,  it  is  binding  as  be- 
tween the  grantor  and  the  immediate  grantee,  and  can  be  enforced 
against  him  by  suitable  process,  both  in  law  and  equity.      .     .     . 

But  it  is  very  clear  that  a  suit  in  equity  to  compel  a  compliance  with 
such  stipulations  concerning  the  use  of  property  must  be  seasonably 
commenced,  before  the  persons  in  possession  of  the  estate  have  ex- 
pended money  or  incurred  liabilities  in  erecting  buildings  or  other 
structures  on  the  premises.  It  would  be  contrary  to  equity  and  good 
conscience  to  suffer  a  party  to  lie  by  and  see  acts  done  involving  risk 
and  expense  by  others,  and  then  permit  him  to  enforce  his  rights  and 
thereby  inflict  loss  and  damage  on  parties  acting  in  good  faith.  In  such 
cases,  a  prompt  assertion  of  right  is  essential  to  a  just  claim  for  relief  in 
equity.  In  the  present  case,  the  plaintiff  Can  have  no  equitable  relief 
to  prevent  the  use  or  procure  the  abatement  of  the  stable  erected  by 
White.  Having  stood  by  and  permitted  its  erection,  she  cannot  now 
invoke  the  aid  of  the  court  to  enforce  a  remedy  in  cciuity  for  its  re- 


120  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    1 

moval.  Whether  she  has  been  guilty  of  further  laches,  so  as  to  pre- 
vent her  maintaining  the  bill  against  the  defendant  for  acts  done  by 
them  in  enlarging  the  stable,  can  be  determined  only  upon  hearing  the 
facts  bearing  on  the  question.     .     .     , 


SECTION  V.  CONSEQUENCES  OF  THE  RIGHT  OF  SPECIFIC 

PERFORMANCE 


LANGFORD  v.  PITT. 

(In  Chancery,  1731,  2  Peere  Williams,   629.) 

Upon  a  bill  brought  by  the  plaintiff  for  the  performance  of  articles 
for  a  purchase,  the  case  was:  The  plaintiff  Langford,  vicar  of  Ax- 
minster  in  Devon,  did  by  attorney  enter  into  articles  with  Governor 
Pitt  for  the  sale  of  lands  in  Cornwall.  The  articles  were  dated  Novem- 
ber, 1725,  whereby  the  plaintifif  agreed  to  convey  the  premises  to 
the  governor  and  his  heirs,  on  or  before  Lady  Day  then  next,  at  the 
costs  and  charges  of  the  governor,  and  as  counsel  should  advise ;  upon 
the  making  of  which  conveyance  the  governor  covenanted  to  pay  il500 
to  the  plaintifif. 

Governor  Pitt  lived  until  after  Lady  Day,  but  in  1722,  long  before 
the  executing  of  these  articles,  made  his  will,  by  which  he  devised  all 
his  real  estate  to  his  son  Robert  Pitt  for  life,  remainder  to  his  eldest 
son  John  Pitt  for  life,  remainder  to  his  first,  etc.,  son  in  tail  male  suc- 
cessively, with  several  remainders  over,  bequeathing  all  his  personal 
estate  to  trustees  to  be  invested  in  lands  and  settled  as  above;  and 
dying  soon  after  Lady  Day,  1726,  his  said  eldest  son  and  heir  laid  claim 
to  the  premises,  as  descending  to  him,  and  made  his  will,  wherein  by 
express  words  he  devised  the  premises  thus  articled  to  be  purchased 
to  his  wife  and  others,  in  trust  to  pay  his  debts,  etc.,  and  soon  after- 
wards died,  leaving  John  Pitt  his  son  and  heir,  to  whom  the  governor 


Cll.    2)  CONSEQUENCE  OF    SPECIFIC   PERFORMANCE.  121 

had  devised  all  his  estate  expectant  on  the  death  of  Robert  Pitt  the 
son.      .     .     . 

Then  the  question  was  between  the  defendants,  whether  the  devisees 
of  Robert  Pitt  the  son,  or  the  grandson  under  the  will  of  the  governor, 
were  entitled  to  the  lands  thus  articled  to  be  purchased,  for  it  was 
agreed  that  the  purchase-mOxiey  was  to  be  paid -by  the  executors  of 
Governor  Pitt. 

And  for  the  latter  it  was  objected  by  the  attorney  and  Solicitor-Gen- 
eral, that  when  the  governor  by  his  will  devised  all  his  real,  and  also 
his  personal  estate  to  be  laid  out  in  land  and  all  this  to  be  for  the  bene- 
fit of  his  grandson  John,  after  the  death  of  his  son  Robert  Pitt,  either 
in  one  shape  or  other,  these  lands  thus  agreed  to  be  purchased  by 
the  governor  should  pass;  that  nothing  could  be  plainer  than  his  in- 
tention to  dispose  of  all  his  estate  both  real  and  personal;  and  Mr. 
Solicitor  cited  the  case  of  Greenhill  v.  Greenhill,  2  Vern.  679,  by  wliich 
it  is  decreed  that  were  a  man  articles  to  buy  land,  this  gives  the  party 
contracting  an  equitable  interest  in  such  land,  which  he  may  devise, 
though  before  the  day  on  which  the  conveyance  is  to  be  made. 

Master  of  the:  Rolls.  I  admit  the  case  of  Greenhill  and 
Greenhill,  in  which  I  myself  was  of  counsel,  to  have  been  so  deter- 
mined ;  but  this  material  difference  is  observable  between  the  two  cas- 
es :  there  the  articles  for  the  purchase  were  entered  into  by  the  testator 
before  he  made  his  will,  and  so  the  equitable  interest  which  he  gained 
thereby  was  well  devisable ;  but  in  the  present  case  Governor  Pitt's 
will  was  made  prior  to  the  articles  for  this  purchase,  before  he  had  any 
equitable  interest  in  the  land,  consequently  (Vide  Green  v.  Smith,  1 
Atk.  572;  Potter  v.  Potter,  1  Ves.  437)  when  he  had  no  kind  of  title, 
he  could  devise  nothing;  so  that  this  interest  in  the  premises  gained  by 
the  governor's  articles  must  have  descended  to  his  son  Robert  Pitt  as 
heir-at-law,  who  might  well  devise  the  same;  and  though  it  may  at 
first  look  strange,  that  when  the  governor  devised  all  his  real  and  per- 
sonal estate,  these  words  should  not  carry  all,  yet  it  will  not  seem 
strange,  when  it  is  considered  that  an  estate  purchased  after  the  will 
cannot  pass  thereby ;  now  these  articles  are  as  a  purchase  subsequent, 
and  though  the  governor's  executors  arc  to  pay  for  such  purchase, 
they  cannot  have  the  benefit  of  it,  being  to  advance  the  money  only  as  a 
debt  from  their  testator.      .     .     . 


122  SPECIFIC    PERFORMANCE    OF  CONTRACTS  (Pai't    1 


COLES  V.  FEENEY. 

(New  Jersey  Court  of  Chancery,  1894,  52  N.  J.   Eq.  493,  29  Atl.   172.) 

The  bill  is  brought  for  the  specific  performance  of  a  contract  for  the 
sale  of  land  by  the  testatrix  to  the  defendant  Feeney,  on  the  26th  of 
December,  1891,  by  which  the  testatrix,  in  consideration  of  $3,000, 
agreed  to  convey  to  the  defendant  Feeney,  a  tract  of  land  in  Jersey 
City,  of  which  she  was  the  owner,  the  conveyance  to  be  completed  on 
the  26th  of  January,  1892.  The  contract  was  signed  by  each  of  the 
parties. 

Three  days  after  the  date  of  this  agreement  Mrs.  Coles  died  testate 
of  a  will,  by  the  first  item  of  which  she  devised  "so  much  of  my  real 
estate  situate  in  Jersey  City  in  the  State  of  New  Jersey  derived  by 
be  from  my  son  William  F.  Coles  lately  deceased  as  at  my  decease 
shall  remain  unsold  and  shall  not  then  be  improved  by  dwelling-houses 
or  other  buildings."  This  devise  covers  the  land  covered  by  the  con- 
tract.      ... 

The  bill  alleges  that  shortly  after  the  will  was  proven  the  executors 
tendered  a  deed  to  Mr.  Feeney  for  the  tract  of  land  in  question  and 
demanded  payment  of  the  purchase-money,  and  that  he  declined,  not 
on  the  ground  that  the  deed  was  not  tendered  at  the  time  fixed  by  the 
contract,  but  because  the  executors  were  unable  to  give  a  perfect  title. 

'i'he  defendant  Feeney  answers,  and  bases  his  refusal  to  complete 
the  purchase  solely  on  the  ground  of  the  inability  of  the  executors  to 
make  a  complete  title  in  the  absence  of  the  devisees  of  the  lot  in  ques- 
tion, who,  being  numerous,  were  not  made  parties.       .     .     . 

Pitney,  V.  C. — I  do  not  think  the  rights  of  the  parties  turn 
upon  the  question,  so  much  discussed  in  the  briefs,  whether  or  not 
the  land  in  question  "remained  unsold"  at  the  decease  of  the  testatrix, 
and  because  sold  was  not  devised  by  her  under  the  first  item  of  her  will, 
or  whether  she  "died  seized"  of  it  in  such  sense  as  to  bring  it  within 
the  scope  of  the  power  of  sale  contained  in  the  thirteenth  item. 

If  this  contract  of  sale  was  a  valid  contract,  its  effect  was  to  work 
a  conversion  of  the  land  from  real  to  personal  property.  This  it 
was  in  the  power  of  the  testatrix  to  do,  notwithstanding  her  will, 
which  was  made  before  the  date  of  the  contract.  Such  conversion,  if 
made,  had  the  effect  of  taking  the  land  out  from  under  the  operation 


Ch.    2)  CONSEQUENCE  OE   SPECIFIC    PERFORMANCE.  123 

of  the  first  clause  of  her  will  and  giving  the  proceeds  of  it  to  her  re- 
siduary legatees  and  devisees  as  a  part  of  her  personal  estate,  and,  in 
the  absence  of  any  power  of  sale,  it  seems  to  me  entirely  clear  that  the 
executors  would  have  the  right,  and  it  would  be  their  duty,  to  take 
proper  proceedings  to  perfect  the  conversion  by  compelling  the  trans- 
fer of  the  legal  title  to  the  purchaser  and  obtaining  from  him  the  pur- 
chase-money. Miller  v.  Miller,  10  C.  E.  Gr.  354.  In  contemplation  of 
equity,  the  title  to  the  property  vested  in  the  purchaser  as  soon  as  the 
contract  was  executed  and  delivered,  subject,  however,  to  a  lien  in 
favor  of  Mrs.  Coles  for  the  unpaid  purchase-money,  and  that  lien  is 
capable  of  being  enforced  by  her  executors  against  the  specific  devisees 
of  the  particular  land,  even  in  the  absence  of  any  power  of 
sale,  by  compelling  them  to  convey  to  the  purchaser  and  compelling  the 
purchaser  to  pay  to  the  executors  the  purchase-money. 

This  right  of  the  personal  representatives  depends  entirely  upon 
the  validity  of  the  contract,  and  in  order  to  enforce  such  right  they 
must  establish  its  validity  as  against  either  the  heir-at-law  or  devisee, 
as  the  case  may  be.     .     .     . 

This  view  of  the  case  shows  that  the  bill  is  defective  in  not  making 
parties  the  several  devisees  under  the  first  clause  of  the  will.  If  they 
had  been  made  parties  I  should  say  the  executors  were  entitled  to  re- 
lief. But  it  is  manifestly  unjust,  and  not  in  accordance  with  equity, 
to  ask  the  purchaser  to  take  a  title  the  validity  of  which  depends  upon 
a  nice  question  of  construction,  when  it  is  within  the  power  of  the 
executors  to  eliminate  all  question  and  room  for  debate  by  making  the 
specific  devisees  parties. 

The  case  may  stand  over,  to  enable  the  executors  to  bring  in  those 
devisees  if  they  shall  be  so  advised.  Otherwise,  I  will  advise  that  the 
bill  be  dismissed. 


ROBERTvS  V.  MARCHANT. 

(High  Court  of  Chancery,  184:3,  1  Phillips  :570.) 

The  Lord  Chancj<;llor.  This  was  a  suit  by  the  administrator 
of  the  vendor  against  the  purchaser  of  an  estate  for  a  specific 
performance  of  the  agreement  of  sale.    The  Defendant  by  his  answer 


124  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    1 

objected  that  the  heir-at-law  of  the  vendor  ought  to  have  been  a  party 
to  the  suit.  The  Vice-Chancellor  Wigram  allowed  the  objection. 
This  is  an  appeal  from  that  decision. 

It  was  argued  that  by  the  contract  the  estate  was  converted  into 
personalty,  and  that  the  heir-at-law  had  no  interest  in  the  matter. 
But  that  is  to  assume  the  very  point  in  controversy,  for  the  heir-at-law 
may  dispute  the  contract  and  controvert  its  validity.  It  was  further 
argued,  that,  as  a  general  rule,  it  is  not  necessary  to  make  parties  to  the 
bill  those  who  are  not  parties  to  the  contract ;  but  that  rule  does  not  ex- 
tend to  representatives ;  and  the  heir-at-law  is  the  representative  of  the 
vendor  as  to  the  realty.     ... 


POTTER  v.  ELLICE. 

(New  York  Court  of  Appeals,  1872,  48  N.  Y.  321.) 

This  is  an  action  against  the  heirs  of  a  vendor,  to  compel  the  specific 
conveyance  of  land.  The  executors  of  the  deceased  vendor  are  not 
made  parties.      .     .     . 

At  the  close  of  the  testimony,  the  defendant's  attorney  "moved  to 
dismiss  the  complaint,  on  the  ground  that  the  said  Charles  R.  West- 
brook  and  John  Rossell  were  not  made  parties  to  the  action."  The 
motion  was  denied  by  the  referee,  who  rendered  judgment  for  the 
plaintiff  to  the  effect  that  the  property  be  conveyed  by  the  defendant  to 
the  plaintiff;  that  the  money  paid  into  court  by  the  plaintiff  (upon  a 
tender)  remain  until  the  delivery  and  execution  of  the  said  deed  to  the 
plaintiff,  and  that  then  the  same  be  paid  to  the  administrator  of  EHice, 
upon  application  for  the  same  to  the  court. 

HuNT^  C.  It  is  difficult  to  say  that  this  action  is  well  brought, 
the  administrators  of  Mr.  Ellice  not  being  made  parties.  The  heir 
of  Mr.  Ellice  holds  the  legal  title,  in  trust,  to  convey  the  same  to  the 
vendee  upon  performance  of  the  conditions  of  the  contract.  He  is  a 
mere  instrument,  having  no  real  interest  in  the  matter  in  a  case  where 
the  contract  is  performed.  The  administrators  are  the  real  parties  in 
interest.  Both  by  the  statute  and  the  common  law  the  interest  in  the 
contract  passes  to  them.     They  are  the  parties  to  whom  he  money 


Cll.    2)  CONSEQUENCE  OF   SPECIFIC   PERFOR?/[ANCE.  125 

is  to  be  paid,  and  who  have  the  entire  beneficial  interest  in  the  con- 
tract. Their  discharge  or  receipt  is  a  necessary  muniment  to  the  vendee. 
They  are  the  parties  not  only  who  receive,  but  who  are  to  settle  or  to 
contest,  as  the  case  may  be,  the  amount  to  be  paid  by  the  vendee  in  ful- 
fillment of  his  contract.  No  one  else  can  legally  adjust  the  amount 
to  be  paid,  or  acquit  for  the  payment.  (2  R.  S.  83;  id.,  194,  No.  169; 
Havens  v.  Patterson.  43  X.  Y.,  221 ;  Lewis  v.  Smith,  5  Seld.,  502,  510; 
1  Sug.  on  \"end.,  264;  Calvert  on  Parties  in  Eq.,  327).  The  admin- 
istrators are  parties,  without  whose  action  some  of  the  most  important 
points  cannot  be  determined.  Among  these  are  the  existence  of  the 
contract  and  the  amount  to  be  paid  in  fulfillment  of  its  terms.  Ad- 
mitting these  general  rules,  the  court  below  supposed  that  reasons 
existed  why  they  should  not  control  the  present  case.  Among  other 
things,  it  is  said  that  the  personal  representatives  of  the  vendor  were 
tendered  the  amount  claimed  to  be  due  upon  the  contract,  according  to 
their  own  statement  of  the  amount  due.  How  has  this  been  estab- 
lished, and  by  whom  ?  By  witnesses  in  a  suit  to  which  the  administra- 
tors were  not  parties.  This  is  a  loose  rule,  by  which  the  parties  are 
to  be  bound,  and  their  rights  cut  off  by  testimony  in  suits  to  which 
they  are  not  parties,  and  in  which  they  have  no  opportunity  to  establish 
their  rights. 


COOPER  V.  JARMAN. 

(Equity  Cases  before  the  Master  of  the  Rolls,  ISfifi,  L.  R.  3  Eq.  Cas.  98.) 

On  the  12th  of  October,  1863,  the  intestate  had  entered  into  a  con- 
tract with  Messrs.  James  and  Robert  Lawrence,  for  the  erection,  by 
them,  of  a  house  on  a  piece  of  freehold  land  belonging  to  him.  The 
house  was  in  course  of  erection,  init  not  finished  at  the  time  of  his 
death;  it  had  since  been  finished,  and  Joseph  Charles  Jarman  had 
paid  £799. 19s.  out  of  the  personal  estate  of  the  intestate  to  Messrs. 
Lawrence  for  the  completion  of  tlie  contract  by  them.  The  question 
now  raised  was,  whether  the  payment  of  this  sum  ought  to  be  al- 
lowed to  Joseph  Charles  Jarman,  as  tin:  legal  personal  representative 
of  tlic  intestate. 


326  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    I 

Lord  Romilly,  M.  R.,  after  stating  the  facts,  continued:  The  next 
of  kin  contend  that  this  sum  ought  not  to  be  allowed  and  that  the 
heir-at-law  must  personally  bear  the  expense  of  completing  the  house. 
The  ground  on  which  this  is  insisted  on  by  the  next  of  kin,  is,  that 
the  contract  was  of  such  a  character  that  the  specific  performance  of 
it  could  not  have  been  enforced  against  the  intestate  if  he  had  thought 
fit  to  resist  it,  and  that  if  he  had  done  so,  and  had  in  the  middle  stopped 
the  further  building  of  the  house,  the  only  remedy  which  Messrs. 
Lawrence  could  have  had  agai'nst  him  would  have  been  by  an  action 
for  damages  sustained  by  them  by  the  breach  of  contract  by  the  in- 
testate. There  can  not,  however,  be  any  question  but  that  the  ad- 
ministrator would  have  been  liable,  in  an  action  brought  by  the  Messrs. 
Lawrence,  if  he  had  refused  to  allow  them  to  complete  the  contract. 
.  .  .  I  think  it  cannot  be  good  law  that  an  administrator  is  bound 
to  do  an  injury  and  inflict  damages  upon  a  person  with  whom  the 
intestate  had  entered  into  a  contract,  and  to  prevent  that  person  from 
completing  his  contract  because,  by  so  doing,  he  would  increase  the 
personal  estate  of  the  intestate.  There  is,  as  it  appears  to  me,  a  wide 
distinction  between  the  case  of  this  description  and  the  case  of  a  con- 
tract for  the  purchase  of  a  piece  of  land.  In  that  case,  the  personal 
estate  of  the  intestate,  or  testator,  is  bound  to  pay  the  purchase-money, 
provided  a  good  title  can  be  made ;  but  if  a  good  title  cannot  be  made, 
then  there  is  no  contract,  and  no  action  would  lie  against  the  repre- 
sentatives of  the  intestate,  because  the  contract,  in  the  absence  of 
any  express  stipulation,  necessarily  is  inferred  to  have  been  to  buy 
land  with  a  good  title;  and  if  the  deceased  person  had  contracted  to 
buy  land  with  any  particular  title,  in  a  manner  to  bind  him,  this  con- 
tract would  bind  the  personal  estate  in  the  hands  of  the  next  of  kin. 
But  I  have  seen  no  case,  and  I  am  unable  to  believe  that  any  case  can 
be  found,  where  a  legal  personal  representative  has  been  made  answer- 
able for  performing  a  contract  entered  into  by  the  deceased  per- 
son, and  at  the  time  of  his  death  intended  to  be  performed  by  him, 
merely  because,  according  to  the  peculiar  rules  of  equity  relating  to 
the  doctrine  of  specific  performance,  such  a  contract  could  not  have 
been  enforced  by  a  suit  in  equity  against  the  deceased  person,  or 
against  his  representative.  Here,  unquestionably,  the  intestate  had 
bound  himself,  as  far  as  possible,  during  his  lifetime.  The  house 
had  been  begun;  the  building  was  in  progress  when  he  died.     If  the 


Ch.    2)  CONSEQUENCE  OF   SPECIFIC   PERFORMANCE.  127 

Messrs.  Lawrence  bad,  tlierefore,  refused  to  go  on  witli  the  build- 
ing, an  action  would  bave  lain  against  them  at  the  sviit  of  the  ad- 
ministrator ;  and  it  cannot,  in  my  opinion,  be  law,  that  the  next  of 
kin  should  be  entitled  to  call  upon  the  heir-at-law  to  resist  the  Messrs. 
Lawrence,  and  hinder  them  from  coming  on  the  land,  and  prevent 
them  from  completing  the  contract  because,  in  the  opinion  of  the  next 
of  kin,  the  damage  sustained  by  the  contractor  would  possibly  be  less 
than  the  amount  to  be  paid  for  the  fulfillment  of  the  contract.  Be- 
sides which,  if  I  am  so  to  hold,  no  rule  could  be  adopted  which  would 
be  certain.  The  administrator  could  not  safely  pay  the  amount  of  dam- 
ages claimed  by  the  contractor  for  the  loss  sustained  by  the  breach 
of  the  contract.  If  he  did,  the  next  of  kin  might  successfully  say  that 
he  paid  more  than  a  jury  would  have  allowed ;  and  if  he  resisted, 
and  went  to  trial  at  law,  and  thereupon  the  amount  of  damages  found 
by  the  jury,  together  with  the  costs  of  the  suit,  should  exceed  the 
amount  to  be  paid  for  the  completion  of  the  contract,  could  the  legal 
prsonal  representative  be  allowed  to  deduct  this  in  taking  the  ac- 
counts? I  apprehend  clearly  not.  The  administrator  has,  in  my 
opinion,  a  clear  duty  to  perform.  The  moral  duty  is  distinct,  ^t 
is  to  perform  the  contract  entered  into  by  his  intestate.  .The  legal 
duty,  in  this  instance,  as  I  believe  it  is  in  all  cases  where  it  is  fully 
understood  and  examined,  is  identical  with  the  moral  duty.  T  am, 
therefore,  of  opinion  that  this  sum  has  been  properly  allowed  in  the 
accounts  of  the  administrator. 


SPRAKE  V.  DAY. 
(Supreme  Court  of  Judicature,  1898,  2  Ch.  Div.  510.) 

The  testator,  by  his  will,  dated  June  2,  1893,  appointed  the  plain- 
tiffs and  the  defendant  H.  J.  Sprake,  to  be  executors  and  trustees 
thereof.  And  he  devised  his  dwelling-house  known  as  Weston  Manor 
House,  together  with  the  stables  etc.,  thereto  belonging,  and  certain 
closes  of  land  adjoining,  to  the  use  of  Elizabeth  Louisa  Sprake-Day 
during  her  life,  and  after  her  decease  to  the  use  of  her  daughter 
Alice  Maud  Day   (the  other  defendant)   during  her  life.     .     .     . 

In  May,  1893,  the  testator    entered    into    a    contract    with    some 


128  SPECIFTO  PERFOEMANCE   OF  CONTRACTS  (Part    1 

builders  for  the  erection  of  some  cottages  upon  a  part  of  the  property 
thus  devised  to  Mrs.  Sprake-Day  and  her  daughter.  The  testator 
liad  also  entered  into  another  contract  with  the  builders  for  the 
erection  of  a  house  on  some  land  situate  at  a  place  called  Misterl-.n 
which  belonged  to  Mrs.  Sprake-Day,  it  having  been  conveyed  to  her 
absolutely  at  his  instance  during  his  lifetime.  At  the  time  of  the  tes- 
tator's death  neither  of  these  contracts  had  been  completed,  and 
after  his  death  the  builders  were  not  allowed  by  the  plaintiffs  to 
finish  the  work.     .     .     . 

North,  J.  As  regards  the  property  which  was  devised  by  the 
testator  for  the  benefit  of  Mrs.  Sprake-Day  and  her  daughter,  and 
which  was  the  subject  of  a  contract  for  building  existing  at  the  time 
of  his  death,  I  think  a  case  is  made  for  an  inquiry,  because  it  seems 
to  me  that  Cooper  v.  Jarman  applies.  It  is  said  that  that  case  stands 
by  itself ;  but  although,  so  far  as  I  know,  there  has  been  no  other  case 
which  supports  it,  on  the  other  hand  there  is  none  against  it,  and  it 
lays  down  an  intelligible  principle.  It  has  been  unreversed  for  a  great 
many  years,  and  though  no  doubt  the  point  is  one  which  does  no', 
often  arise,  still  there  the  case  stands,  and  I  must  follow  it,  but  I 
do  not  think  it  applies  to  the  Misterton  property  which  was  not  given 
by  the  testator's  will.  That  property  had  at  some  time  before  his 
death  been  conveyed  direct  to  Mrs.  Sprake-Day  at  his  instance.  Then 
the  testator  entered  into  a  contract  for  the  building  of  four  cottages 
upon  this  land.  This  contract  has  not  been  completed,  but  the  per- 
son entitled  to  the  benefit  of  it  has  carried  in  a  claim  against  the 
testator's  estate,  and  it  appears  from  the  chief  clerk's  note  that  a 
certain  sum  has  been  allowed.  I  do  not  see  that  any  claim  has  been 
made  by  Mrs.  Sprake-Day  in  respect  of  this  property.  The  property 
was  conveyed  to  her  out  and  out,  and  the  testator  entered  into  some 
contract  with  respect  to  it,  but  whether  under  such  circumstances 
that  she  could  have  compelled  him  to  carry  out  the  contract  I  do  not 
know.  I  can  understand  that  there  might  be  circumstances  under 
which  he  would  have  been  bound  to  carry  out  such  a  contract,  by 
reason  of  some  consideration  moving  from  her  to  him  to  induce  him 
to  undertake  the  liability.  But  the  evidence  which  has  been  adduced 
does  not  establish  any  liability  of  that  kind,  and  I  do  not  see  how 
a  person  who  for  this  purpose  is  a  stranger — the  owner  of  the  prop- 
erty before  the  testator's  death  and  not  taking  it  under  his  will — can 
claim  to  have  a  contract  entered  into  by  the  testator  with  a  builder 


Cll.    2)  CONSEQUENCE  OF   SPECIFIC   PERFORMANCE.  129 

to  erect  houses  upon  it  carried  out.  Under  these  circumstances  I  can 
only  direct  an  inquiry  whether  the  testator  had  entered  into  any 
and  what  building  contracts  or  contract  affecting  the  property  devised 
to  Mrs.  Sprake-Day  for  her  life,  with  remainders  over,  and  whether 
any  and  which  of  such  contracts  were  uncompleted  at  his  death  in 
respect  of  which  his  estate  was  under  any  and  what  liability,  and 
whether  any  and  what  compensation  should  be  paid  by  the  testator's 
estate  in  respect  thereof. 


NEWTON  V.  NEWTON. 

(Rhode    Island    Supreme    Court,    1876,    11    R.    I.    390.) 

DuRFEE,  C.  J.  This  is  a  motion  for  leave  to  amend  a  bill  in  equity. 
The  bill  is  brought  by  the  widow  and  children  of  William  Newton, 
late  of  Newport,  deceased,  against  Edward  F.  Newton,  administrator 
upon  his  estate.  The  bill  sets  forth  that  on  the  4th  day  of  February, 
1847,  William  Newton  conveyed  to  the  defendant  for  $2,000,  one 
undivided  half  part  of  a  certain  lot  of  land  in  Newport,  and  that  on 
the  13th  day  of  February,  1858,  said  William  Newton  conveyed  to  the 
defendant  for  $1,500  one  undivided  half  part  of  a  certain  other  lot 
of  land  in  Newport.  The  bill  further  sets  forth  that  there  was  among 
the  personal  property  of  William  Newton  which  came  into  the  hands 
of  the  defendant,  in  his  capacity  as  administrator  as  aforesaid,  as 
the  plaintiff's  have  recently  been  informed,  a  certain  bond  or  writing 
obligatory,  executed  by  the  defendant  and  delivered  to  William 
Newton,  the  purport  of  which  was  as  follows,  to  wit :  It  recites  the 
sales  above  mentioned,  and  binds  the  defendant  under  a  penalty  of 
$4,000  to  fulfill  an  agreement  by  which  he  grants  "the  privilege  to 
the  said  William  Newton  at  any  time,  at  his  own  option,  for  or  within 
the  term  of  seven  years  from  the  present  date,  to  purchase  the  whole 
of  said  two  estates  for  the  sum  of  eight  thousand  dollars."     .     . 

If  the  administrator  should  purchase  under  the  option,  he  should 
doubtless  purchase  for  and  in  the  name  of  the  heirs  at  law,  the  property 
being  real  estate.  In  this  state,  where  the  next  of  kin  and  the  heirs 
at  law  are  generally  the  same  persons,  and  where  the  real  and  per- 
sonal estate  is  equally  liable  for  debts,  such  a  change  in  the  form  of  the 
1  Eq.— 9 


130  SPECIFIC   PERFOEMANCE   OF  CONTRACTS  (Part    1 

assets,  if  wisely  made,  would  be  of  small  importance.  But  to  test 
the  power  of  the  administrator,  we  may  inquire  what  the  result  would 
be  at  common  law.  At  common  law  the  next  of  kin  and  the  heirs  at 
law  are  often  not  the  same,  and  real  estate  is  not  liable  to  the  same 
extent  as  personal  property  for  debts ;  and  therefore  to  concede  to 
the  administrator  the  power  to  accept  the  option  would  be  to  con- 
cede to  him  the  power,  to  the  extent  of  the  option,  to  change  the  suc- 
cession to  the  property,  and  to  qualify  its  liability  for  the  debts  of 
the  intestate.  We  think  there  is  no  principle  on  which  this  could  be 
permitted.  Moreover,  in  the  case  at  bar,  the  administrator,  to  have 
accepted  the  option,  would  have  had  not  only  to  pay  $8,000,  but  also 
to  exonerate  the  maker  of  the  bond  from  partnership  losses  and 
liabilities.  Neither  the  bill  nor  the  proposed  amendment  offers  to 
fulfill  this  condition,  or  shows  that  it  was  ever  within  the  power  of 
the  administrator  to  fulfill  it.  Certainly  the  administrator  had  no 
power  to  bind  the  estate  to  such  an  exoneration  by  any  contract  of 
indemnity,  if  that  was  required  for  the  fulfillment  of  the  conditions. 
Such  a  contract  would  have  been  beyond  his  capacity  as  administra- 
tor.    .     .     . 


LAWES  v.  BENNETT. 

(In   Chancery,    1785,    1    Cox    167.) 

Thomas  Witterwronge,  seized  in  fee  of  a  farm  called  Bently,  by 
indenture,  dated  2nd  October,  1758,  demised  the  said  farm  to  John 
St.  Leger  Douglas,  Esquire,  his  executors,  administrators,  and  assigns, 
for  seven  years  under  the  yearly  rent  of  £106  14s.  6d.  and  upon  the 
back  of  the  said  indenture,  was  indorsed  a  memorandum  or  agreement 
signed  by  Witterwronge  and  Douglas  bearing  even  date  with  the 
said  indenture,  whereby  it  was  agreed  by  and  between  the  said  Witter- 
wronge and  Douglas,  that  in  case  Douglas  should  at  any  time  after 
the  29th  of  September  1761,  and  before  the  29th  of  September  1765, 
be  desirous  of  absolutely  purchasing  the  fee  simple  and  inheritance 
of  the  said  premises,  mentioned  in  the  said  indenture,  for  the  sum 
of  £3000  to  be  paid  by  him  to  the  said  Witterwronge  at  the  execution 
of  the  conveyance  thereof,  and  of  such  his  mind  and  intention  should 


Ch.    2)  COXSEQUEXCE  OF   SPECIFIC    PERFOKMAXCE.  131 

give  notice  in  writing  to  the  said  Witterwronge  before  the  29th  Sep- 
tember 1765,  then  Witterwronge  agreed  to  sell  to  Douglas  the  fee 
simple  and  inheritance  of  the  said  premises  for  the  said  sum  of  i3000 
and  to  execute  proper  conveyances  thereof. 

Thomas  Witterwronge,  by  his  will  dated  1st  September  1761, 
devised  all  his  real  estates  of  which  he  was  seized  or  entitled  to,  unto 
his  cousin  John  Bennett,  and  he  thereby  gave  and  bequeathed  his 
personal  estate  to  the  said  John  Bennett,  and  to  the  plaintiff  Mary, 
sister  of  the  said  John  Bennett  (after  payment  of  his  debts  and  leg- 
acies) to  be  divided  equally  share  and  share  alike,  and  appointed  John 
Bennett  and  plaintiff  Mary  joint  executors. 

Testator  died  in  June  1763,  and  on  11th  February  1764,  John  Ben- 
nett settled  an  account  with  plaintiff  Mary,  of  all  the  testator's  per- 
sonal estate,  and  paid  her  £324  6s.  3d.  as  her  moiety  thereof,  and 
the  account  was  signed  and  allowed  by  both  of  them. 

By  deed  poll,  dated  2d  of  March  1762,  made  between  the  said 
John  St.  Leger  Douglas  of  the  one  part,  and  William  Waller  Esquire 
of  the  other  part,  after  reciting  the  said  lease  of  1758,  and  the  mem- 
orandum or  agreement  thereon  indorsed,  the  said  John  St.  Leger 
Douglas,  for  the  consideration  therein  mentioned,  assigned  the  said 
premises  and  all  his  interest  therein,  and  all  benefit  and  advantage 
which  should  or  might  arise  from  the  said  agreement  to  the  said  will- 
iam  Waller,  his  executors,  administrators,  or  assigns,  for  all  the 
residue  of  the  term  then  to  come  therein. 

On  the  2d  February  1765,  William  Waller  called  upon  John  Bennett 
to  perform  the  contract  entered  into  by  the  testator  for  sale  of  the 
premises  for  £3000,  which  Bennett  complied  with,  and  accordingly  by 
indentures  of  lease  and  release,  dated  1st  and  2d  of  February  1765, 
in  pursuance  and  performance  of  the  said  agreement,  so  indorsed  upon 
the  said  indenture  of  1758,  and  in  consideration  of  £3000  the  said 
John  Bennett  did  bargain,  sell,  etc.  the  said  premises  to  the  said  Wil- 
liam Waller,  his  heirs  and  assigns  for  ever. 

In  1779  John  Bennett  died,  leaving  defendant  his  widow  and  ex- 
ecutrix; and  the  present  bill  was  filed  by  Thomas  Lawes  and  Mary 
his  wife  (sister  of  the  said  John  Bennet),  stating,  that  they  had  not 
until  lately  discovered  the  sale  of  the  estate  to  Waller,  and  claiming 
one  moiety  of  the  purchase  money  received  by  Bennett,  as  being  part 
of  the  personal  estate  of  the  testator  Witterwronge,  and  which  he  had 


132  SPECIFIC    PERFORMANCE    OF  CONTRACTS  (Part    1 

devised  equally  to  Bennett  and  plaintiff  Mary.  And  this  was  the 
single  question  in  the  cause,  whether  the  premises  being  part  of  the 
testator's  real  estate  at  the  time  of  his  death,  but  sold  afterwards 
under  the  circumstances  aforesaid,  the  purchase  money  should  be 
considered  as  part  of  the  real  or  personal  estate  of  the  testator.  .  .  , 
Master  oe  the;  Rolls.  Although  this  case  may  be  new  in  species, 
yet  the  principles  upon  which  it  seems  to  me  to  depend  are  perfectly 
clear,  and  are  so  well  established  in  this  cornet ,  that  if  I  am  wrong  it 
must  be  by  misapplication  of  those  principles.  No  stress  can  be  laid 
upon  the  will  of  Witterwronge,  for  that  is  expressed  in  very  general 
terms.  He  had  two  species  of  property,  one  of  which  gives  to  Ben- 
nett, the  other  to  Bennett  and  his  sister.  Then  which  kind  of  prop- 
erty is  the  present?  It  is  very  clear  that  if  a  man  seized  of  a  real 
estate  contract  to  sell  it,  and  die  before  the  contract  is  carried  into 
execution,  it  is  personal  property  of  him.  Then  the  only  possible  dif- 
ficulty in  this  case  is,  that  it  is  left  to  the  election  of  Douglas  whether 
it  shall  be  real  or  personal.  It  seems  to  me  to  make  no  distinction  at 
all.  Suppose  a  man  should  bargain  for  the  sale  of  timber,  provided 
the  buyer  should  give  proper  security  for  the  payment  of  the  money. 
This  when  cut  down  would  be  part  of  the  personal  estate,  although 
it  depends  upon  the  buyer  whether  he  gives  security  or  not ;  (as  to 
what  has  been  said  about  Douglas'  being  able  to  release  his  power  of 
election,  I  think  a  court  of  equity  would  relieve  against  that,  if  it 
appeared  to  be  done  coUusively  to  oust  the  legatee  of  his  personal  es- 
tate;) when  the  party  who  has  the  power  of  making  the  election  has 
elected,  the  whole  is  to  be  referred  back  to  the  original  agreement, 
and  the  only  difference  is,  that  the  real  estate  is  converted  into  per- 
sonal at  a  future  period.  The  case  of  Bowes  v.  Lord  Shrewsbury,  5 
Bro.  Pari.  Ca.  269,  shows  the  nature  of  the  property  may  be  altered 
otherwise  than  by  the  act  of  the  original  owner,  although  that  was 
altered  by  the  act  of  the  legislature  and  not  of  any  third  person : 
but  it  shows  generally  that  there  is  no  impossibility  in  the  nature  of 
the  thing.  As  to  the  length  of  time,  I  think  I  can  take  no  notice  of 
it  in  this  case,  for  here  there  is  no  pretense  to  presume  the  demand 
satisfied.  On  the  contrary,  it  has  been  withholden  for  another  reason. 
I  must  therefore  declare  this  £3000  to  be  part  of  the  personal  estate 
of  the  testator,  and  that  the  plaintiffs  are  entitled  to  one  moiety  there- 
of, and  the  Master  must  inquire  whether  the  plaintiff  Thomas  has 


Cll.    2)  CONSEQUEXCE  OF   SPECIFIC    PERFORMANCE.  loo 

made  any.  and  what  settlement  on  the  plaintiff  Mary.  etc.  And  as 
to  interest,  as  it  appears  that  Bennet  laid  out  this  money  in  the  funds, 
and  consequently  has  made  interest  of  it ;  he  must  be  answerable  for 
interest,  from  1st  February,  at  4  per  cent.     .     .     . 


BAILEY  AND  WIFE  v.  DUNCAN'S  REPRESENTATIVES. 

(Kentucky    Court    of    Appeals,    1827,   4    Monroe,    256.) 

Owsley,  J.  .  .  .  We  have  already  seen  that  Isaac  Duncan, 
the  husband,  resided  upon  the  land  at  the  time  of  his  decease,  and 
that  as  respects  the  present  contest,  it  is  not  competent  for  Bailey  and 
his  wife,  who  claim  under  his  purchase,  to  contest  the  goodness  of 
his  equity,  so  that  in  deciding  upon  the  widow's  right  to  dower,  the 
question  arises  whether  or  not  a  wife  is  entitled  to  dower  in  land,  of 
which  her  husband  dies  possessed,  though  without  having  the  legal 
title,  but  to  which  at  the  time  c-f  his  death  he  is  equitably  entitled  to 
a  conveyance  of  the  legal  title  from  another? 

Were  this  question  to  be  decided  upon  common  law  principles,  the 
answer  would  undoubtedly  be  in  the  negative.  As  early  as  Vernon's 
case,  4  Co.  R.  1,  it  was  held  that  a  wife  was  not  dowable  of  a  use 
before  the  statute  of  uses;  and  since  the  statute,  uses  or  trusts  not 
executed  by  the  statute  have  been  repeatedly  held  not  to  give  the 
wife  a  greater  interest  that  uses  at  common  law. 

In  the  case  of  Bottomley  v.  Lord  Fairfax,  Free.  Ch.  336,  the  court 
say,  "that  if  a  husband  before  marriage  conveys  his  estate  to  trustees 
and  their  heirs,  in  such  a  manner  as  to  put  the  legal  estate  out  of  him, 
though  the  trust  be  limited  to  him  and  his  heirs,  that  of  this  trust 
estate,  the  wife,  after  his  death,  shall  not  be  endowed,  and  that  this 
court  hath  never  yet  gone  so  far  as  to  allow  her  dower  in  such  a  case." 

In  the  case  of  Chaplin  v.  Chaplin,  3  Peere  Wm.  R.,  the  chancellor 
says,  "that  as  at  common  law,  an  use  was  the  same  as  a  trust  is  now, 
it  follows,  that  the  wife  can  no  more  be  endowed  of  a  trust  now, 
than  at  common  law,  and  before  the  statute,  she  could  be  endowed 
of  an  use." 

And  in  the  case  of  Godwin  v.  Winsmore,  2  Atkins,  526,  Lord 
Hardwicke  observes,  that  "it   is  an   established  doctrine  now   that   a 


134  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Pjirt    1 

wife  is  not  dowablc  of  a  trust  estate;  indeed,  says  he,  "a  distinction 
is  taken  by  Sir  Joseph  Jekyll,  in  Banks  v.  Sutton,  2  P.  W.  708,  709, 
in  regard  to  a  trust  where  it  descends  or  comes  to  the  husband  from 
another,  and  is  not  created  by  himself ;  but  I  think  there  is  no  ground 
for  such  a  distinction,  for  it  is  going  on  suppositions  which  hold  on 
both  sides." 

Thus  stood  the  doctrine  of  the  law  upon  the  subject  of  estates  in 
trust,  until  the  passage  of  an  act  by  the  legislature  of  Virginia  before 
the  separation,  and  which  has  since  been  reenacted  by  the  legislature 
of  this  state,  and  is  contained  in  1  Dig.  L.  K.  315. 

The  act  provides,  that,  "where  any  person  to  whose  use,  or  in 
trust  for  whose  benefit,  another  is,  or  shall  be  seized  of  lands,  tene- 
ments or  hereditaments,  hath  or  shall  have  such  inheritance  in  the  use 
or  trust,  as  if  it  had  been  a  legal  right,  the  husband  or  wife  of  such 
person  would  thereof  have  been  entitled  to  courtesy  or  dower,  such 
husband  or  wife  shall  have  and  hold,  and  may  by  the  remedy  proper 
in  similar  cases,  recover  courtesy  or  dower  of  such  lands,  tenements, 
or  herditaments." 

With  respect  to  uses  and  trusts  embraced  by  the  provisions  of  this 
act,  the  doctrine  of  the  common  law  has  undoubtedly  undergone  a 
change,  and  although  formerly  a  wife  was  not  dowable  of  such  a  use 
or  trust,  she  may  now  by  the  remedy  proper  in  such  a  case,  recover 
dower  of  the  lands  to  which  others  are  seized  to  the  use,  or  in  trust 
for  the  benefit  of  the  husband.  In  deciding  upon  the  question  under 
consideration  therefore,  the  main  and  only  inquiry  for  the  court,  is  to 
ascertain  whether  or  not  it  was  intended  by  the  makers  of  the  act, 
to  authorize  a  wife  to  recover  dower  in  lands,  to  which  the  husband 
had  at  his  death  an  indisputable  right  in  equity  to  a  conveyance  of  the 
fee  simple  estate,  though  the  right  be  devised  under  an  executory  con- 
tract for  the  title,  and  not  resulting  from  an  use  or  trust,  expressly 
declared  by  deed.  With  respect  to  trusts  of  the  latter  sort,  the  pro- 
visions of  the  act  are  too  explicit,  in  favor  of  the  wife's  right,  to 
admit  of  a  difiference  of  opinion ;  and  if  we  advert,  as  we  should  do, 
to  the  old  law  as  it  stood  at  the  passage  of  the  act,  the  mischief  which 
must  have  actuated  the  legislature  in  making  the  change,  and  the 
remedy  which  the  act  has  provided,  we  apprehend,  but  little  doubt 
will  be  entertained  as  to  the  propriety  of  giving  such  a  construction 
to  the  act,  as  will  embrace  all  trusts,  whether  expressly  declared  by 


Cll.    2)  CONSEQUENCE  OF   SPECIFIC   PERFORMANCE.  135 

deed  or  resulting  from  executory  contracts,  by  construction  of  courts 
of  equity.  The  interests  of  the  cestui  que  trust  is  precisely  the  same, 
let  the  trust  be  created  in  the  one  way  or  the  other,  the  justice  of  the 
wife's  claim  is  as  strong  in  one  case  as  the  other ;  and,  as  she  was  not 
dowable  in  a  trust  of  either  sort,  before  the  enactment  of  the  statute, 
the  mischief  to  be  remedied  by  the  act,  emphatically  demands  that 
the  wife  should  be  endowed  of  trust  estates  of  both  sorts. 

We  have  been  unable  to  find  any  case,  either  in  this  country  or 
Virginia,  where  dower  has  been  decreed  to  the  wife,  in  an  equitable 
estate  in  fee,  to  which  the  husband  became  entitled  by  contract,  for 
a  conveyance  of  the  land;  but  the  right  of  the  wife  to  dower  in  such 
a  case  came  before  the  appellate  court  of  the  state  of  Virginia,  in  the 
case  of  Rawton  v.  Rawton,  1  H.  M.  R.  92,  and  although  a  majority  of 
the  court  decided  against  the  claim  of  dower  in  that  case,  two  out  of  the 
five  judges  composing  the  court,  were  expressly  in  favor  of  the  claim 
for  dower;  and  the  decision  of  the  others  went  not  upon  the  idea  of 
dower  not  being  allowed  in  an  equitable  estate,  but  upon  the  principle 
that  the  equitable  estate,  of  which  dower  was  claimed,  was  not  made 
out  by  the  testimony  in  the  cause.  And  in  the  case  of  Claibourn  v. 
Claibourn,  which  afterward  came  before  the  same  court.  Judge  Roane, 
who  was  one  of  the  judges  that  decided  against  the  widow's  claim 
of  dower  in  the  former  case,  in  remarking  upon  that  case,  after  stating 
its  circumstances,  says,  "the  transaction  having  happened  subsequent  to 
the  act  of  1785"  (the  act  of  which  the  act  of  this  country  is  a  tran- 
script), "the  widow  claimed  her  dower  only  under  the  provision  of 
that  statute.  Three  of  the  judges  overruled  her  claim;  but  it  was 
on  the  ground  of  no  contract  having  been  proved,  as  they  thought, 
for  more  than  a  life  estate,  in  favor  of  the  husband:  two  other  judges 
thought  that  the  husband  had  an  equitable  estate  in  fee,  and  on  that 
ground  were  in  favor  of  the  dower,  under  the  act  of  1785."  In  the 
course  of  his  remarks  he  further  says,  "the  counsel  in  opposition  to 
the  claim  of  dower,  admitted  that  under  the  act  of  1785,  the  widow 
was  entitled  to  dower,  provided  it  should  appear  that  her  husband 
had  such  an  equity  in  a  fee  simple  estate,  as  would  authorize  a  court 
of  equity  to  decree  the  legal  estate."  Thus  it  seems  to  have  been  the 
concurrent  opinion  of  the  bar  and  the  bench  of  the  supreme  court 
of  Virginia,  that  since  the  act  of  1785,  of  which  ours  is  a  copy,  that 
a  wife  is  dowable,  of  any  equity  in  a  fee  simple  estate,  belonging  to 


136  SPECIFIC   PERFORMANCE    OF  CONTRACTS  (Part    1 

the  husband,  if  it  will  authorize  a  court  of  equity  to  decree  the  legal 
title.     .     .     . 


HAMPSON   V.   EDELEN. 

(Maryland  Court  of  Appeals,  1807,  2  Harris  &  J.  64.)   - 

Chase,  C.  J.  In  this  case  it  appears  that  a  considerable  part 
of  the  purchase  money  was  paid,  and  possession  given  of  the  land, 
prior  to  the  obtention  of  the  judgments  by  Hampson  against  Wade. 

A  contract  for  land  bona  fide  made  for  a  valuable  consideration 
vests  the  equitable  interest  in  the  vendee  from  the  time  of  the  execu- 
tion of  the  contract,  although  the  money  is  not  paid  at  that  time.  When 
the  money  is  paid  according  to  the  terms  of  the  contract,  the  vendee 
is  entitled  to  a  conveyance,  and  to  a  decree  in  chancery  for  a  specific 
execution  of  the  contract,  if  such  conveyance  is  refused. 

A  judgment  obtained  by  a  third  person  against  the  vendor,  mesne 
the  making  the  contract  and  the  payment  of  the  money,  cannot  defeat 
or  impair  the  equitable  interest  thus  acquired,  nor  is  it  a  lien  on  the 
land  to  affect  the  right  of  such  cestui  que  trust. 

A  judgment  is  a  lien  on  the  land  of  the  debtor,  and  attaches  on  it 
as  a  fund  for  its  payment ;  but  the  legal  estate  in  the  land  is  not  vested 
in  the  judgment  creditor,  although  he  can  convert  it  into  money,  to 
satisfy  his  debt,  by  pursuing  the  proper  means. 


BLOCK  V.  MORRISON. 

(Supreme  Court  of  Missouri,  1892,  112  Mo.  343,  20  S.  W.  340.) 

Black,  J.  .  .  .  The  deed  from  Easton  to  Hammond  states  that 
it  was  made  in  consideration  of  $1,583,  paid  by  Hammond,  and  pur- 
suant to  the  considerations  of  a  certain  bond  executed  by  Easton  to 
Hammond  and  Wilkinson,  dated  the  third  of  September,  1818.  Ham- 
mond, therefore,  held  a  title  bond  for  the  conveyance  of  the  land  as  far 
back  as  1818,  which  was  before  the  date  of  the  judgment  under  which 


Cll.    2)  CONSEQUENCE  OF   SPECIFIC    PERFORMANCE.  137 

the  property  was  sold.  Did  this  title  bond  create  in  the  vendee  an  interest 
in  the  land  which  was  subject  to  sale  under  execution?  The  answer 
must  be  in  the  affirmative.  The  statute  in  force  at  that  time  provides 
that  the  sheriff's  deed  "shall  be  effectual  for  passing  to  the  purchaser 
all  the  estate  and  interest  which  the  debtor  had  or  might  lawfully 
part  with  in  the  lands  at  the  time  judgment  was  obtained."  1  Terri- 
torial Laws,  120,  sec.  45. 

In  Brant  v.  Robertson,  16  Mo.  129,  this  court  said:  "When  parties 
have  bound  themselves  by  agreement  to  convey  land  and  to  pay  for  it, 
equity  recognizes  an  interest  in  the  land  as  already  in  the  purchaser, 
and  the  case  is  the  stronger  when  the  purchaser  has  actually  paid  in 
whole  or  in  part ;  and  in  either  case,  the  interest  of  the  purchaser  may 
be  sold  on  execution,  upon  the  principle  that  the  vendor  is  to  be  re- 
garded as  seized  in  equity  to  the  use  of  the  purchaser.  But  if  no  money 
has  been  paid,  and  if  the  person  who  may  become  the  purchaser  is  not 
actually  under  any  obligation  to  pay,  then  there  is  no  seizin  in  the  sell- 
er, even  in  equity,  to  the  purchaser's  use,  and  there  is  no  interest  in  the 
land  in  him  which  is  liable  to  sale  on  execution."  It  is  true  the  statute 
then  in  force  made  "all  real  estate,  whereof  the  defendant,  or  any 
person  for  his  use,  was  seized  in  law  or  equity,"  subject  to  sale  on 
execution ;  and  "real  estate"  was  defined  to  be  "all  estate  and  interest 
in  lands,  tenements  and  hereditaments."  The  words  of  the  statute 
then  in  force  were  different  from  the  words  of  the  statute  now  in  ques- 
tion, but  there  is  no  substantial  difference  in  their  meaning.  The 
statute  now  in  question  makes  any  interest  in  land  which  the  debtor 
may  sell  subject  to  sale  under  execution.  That  a  title  bond  for  the 
conveyance  of  land  gives  the  vendee  an  interest  which  he  may  sell  can- 
not be  doubted.  The  principle  of  law  is  well  settled  that,  where  there 
has  been  a  contract  for  the  sale  of  land,  the  vendor  becomes  the  trustee 
of  the  land  for  the  vendee,  and  that  the  vendee  has  an  interest  in  the 
land  which  may  be  sold  under  execution.  Papin  v.  Massey,  27  Mo.  445 ; 
Hart  V.  Logan,  49  Mo.  47;  Morgan  v.  Bouse,  53  Mo.  219.  In  some 
of  these  cases  the  vendee  had  been  put  in  possession,  and  in  others 
the  whole  or  a  part  of  the  purchase  money  had  been  paid;  these  cir- 
cumstances may  make  out  a  stronger  case,  but  the  principle  still  stands, 
that  the  vendee  in  a  title  bond  has  an  interest  in  the  land  which  he  may 
sell,  and  which  he  may  enforce  by  specific  performance,  and  which  is 
subject  to  sale  under  execution.       .     .     . 


338  SPECIFIC   PEEFOEMANCE   OF  CONTEACTS  (Part    1 


HELLREIGEL  v.  MANNING 

(New  York  Court  of  Appeals,  1884,  97  N.  Y.  56.) 

Earl,  J. — This  action  was  brought  by  the  plaintiff  to  compel 
the  defendant  to  specifically  perform  a  contract  for  the  purchase  of 
land.     .     .     . 

Upon  the  trial,  the  counsel  for  the  defendant  offered  as  follows : 
"To  prove  that  during  the  four  years  of  the  running  of  the  contract 
in  question,  the  buildings  on  the  premises  have  never  been  painted, 
although  they  required  painting;  that  they  have  been  suffered  to  be- 
come dilapidated  for  want  of  painting,  that  Mr.  Hellreigel  has  allow- 
ed them  to  run  down ;  that  he  has  realized  every  thing  from  the  build- 
ings without  paying  out  anything  on  them  for  repairs ;  to  show  that 
he  has  permitted  the  sewers  to  be  stopped  up ;  that  the  cellars  are  filled 
with  water  to  the  depth  of  two  feet  and  upward;  that  the  gates  have 
been  broken  off  the  hinges ;  that  the  sidewalks  have  been  permitted  to 
become  out  of  repair,  and  dangerous  for  the  people  passing  over  it," 
and  that,  in  consequence  of  all  these,  the  building  had  depreciated  in 
value  to  the  extent  of  several  hundred  dollars.  There  was  no  allegation 
in  the  answer  nor  offer  to  prove  that  the  plaintiff  had  done  anything  in- 
tentionally or  willfully  to  damage  the  buildings  or  depreciate  their 
value.  The  deterioration  in  the  condition  of  the  buildings  seems  to 
have  been  due  to  natural  causes,  and  the  ordinary  use  of  them.  It  is 
not  claimed  that  there  is  anything  in  the  language  of  the  contract 
which  required  the  plaintiff  to  keep  the  premises  in  repair,  and  hence 
his  conduct  in  reference  to  them  must  have  been  such  that  it  would  be 
inequitable  and  unjust  for  a  court  of  equity  to  enforce  the  contract  in 
his  favor.  There  was  no  allegation  in  the  answer,  and  no  proof  that  the 
premises  were  not  worth  the  sum  which  the  defendant  agreed  to  pay 
for  them.  There  was  no  proof,  or  offer  to  prove,  that  the  plaintiff  had 
realized  more  than  a  fair  interest  upon  his  investment  from  the  rent 
of  the  premises,  and  hence  that  he  put  into  his  pocket  what  he  might 
well  have  expended  in  keeping  the  premises  in  good  repair.  We  do  not 
perceive  that,  under  the  circumstances,  he  owed  the  defendant  any  duty 
to  keep  the  premises  in  repair.     A  party  agreeing  to  sell  and  convey 


Cll.    2)  CONSEQUENCE  OF   SPECIFIC   PERFOBMANCE.  139 

premises  at  a  future  day  does  not,  in  the  absence  of  stipulations  to  that 
effect,  owe  the  vendee  any  duty  to  keep  them  in  good  repair,  or  to 
guard  against  the  decay  which  is  due  to  time  and  ordinary  use.  Cir- 
cumstances might  occur  which  would  impose  such  a  duty  upon  the 
vendor;  but  they  do  not  exist  in  this  case,  and  were  not  offered  to  be 

proved.     .     .     . 


BLEW  V.  McClelland. 

(Missouri  Supreme   Court,   1860,   29   Mo.   304.) 

Napton,  J.  On  the  8th  of  November,  1856,  Blew,  the  plain- 
tiff, made  a  verbal  contract  with  McClelland  for  the  purchase  of  a  lot 
in  the  town  of  Princeton,  Mercer  county,  on  which  there  was  a  tavern 
and  other  buildings.  The  improvements  constituted  the  principal 
value  of  the  property.  The  price  agreed  on  was  $1,550,  five  hundred 
of  which  was  paid  down.  McClelland  was  to  execute  on  the  same 
day,  or  the  Monday  following,  a  title  bond  for  a  conveyance  of  the 
title  when  the  purchase  money  was  paid,  and  Blew  was  to  give  his  notes 
for  the  balance  of  the  purchase  money.  On  Sunday,  the  9th  of  No- 
vember, the  buildings  were  all  destroyed  by  fire.  Nothing  further  was 
done;  the  title  bond,  although  tendered,  was  never  received,  and  the 
notes  for  $1,050  were  not  executed.  McClelland  had  a  policy  of  in- 
surance on  the  premises  for  eight  hundred  dollars,  which  he  collected 
from  the  company,  representing  himself  as  the  owner,  and  which  in  his 
answer  he  offers  to  treat  as  a  liquidation  of  the  purchase  money,  pro 
tanto.  This  suit  is  brought  by  Blew  to  recover  the  five  hundred  dollars 
purchase  money  advanced,  and  the  only  question  presented  by  the 
record  is  whether,  under  these  circumstances,  the  action  will  lie. 

The  case  of  Paine  v.  Meller,  6  Ves.  349,  is  understood  to  have  de- 
termined that,  where  there  is  a  contract  for  the  sale  of  a  house,  and  be- 
fore a  conveyance  the  house  is  burned  down,  the  loss  falls  on  the  pur- 
chaser, and  the  purchaser  is  still  bound  to  execute  his  agreement  to 
pay  the  purchase  money.  This  does  not  appear  to  have  been  the 
opinion  of  the  Master  of  the  Rolls  in  vStout  v.  Bailey,  2  P.  Wms.  220, 
who  thought,  in  such  a  case,  the  purchaser  would  not  l)c  bound.  But 
Sir  Edward  Sugden  seems  to  regard  the  decision  of  Lord  Eldon,  in 


]40  SPECIFIC   PERFOEMANCE   OF  CONTEACTS  (Part    1 

Paine  v.  Meller,  as  the  true  exposition  of  the  law.  It  is  based  upon  the 
doctrine  that  equity  regards  as  done  what  has  been  agreed  to  be  done, 
and  therefore,  after  a  vaHd  agreement  to  purchase,  looks  upon  the 
purchaser  as  the  owner.  Hence  Sir  Edward  Sugden  declares  the  law 
to  be  that  a  vendee,  being  equitable  owner  of  the  estate  from  the  time 
of  the  contract  for  sale,  must  pay  the  consideration  for  it,  although 
the  estate  itself  be  destroyed  between  the  agreement  and  the  convey- 
ance; and,  on  the  other  hand,  he  will  be  entitled  to  the  benefit  which 
may  accrue  to  the  estate  in  the  interim."     (1  Sugden  on  Vendors,  277). 

The  principle  has,  in  England,  been  carried  to  the  extent  of  holding 
that,  where  an  agreement  was  made  for  the  purchase  of  an  estate,  in 
consideration  of  an  annuity  for  life  to  the  vendor,  and  he  dies  before 
the  conveyance  and  before  the  annuity  becomes  due,  the  contract  will 
still  be  specifically  enforced.  (Mortimer  v.  Cupper,  1  Bro.  C.  C.  156; 
Jackson  v.  Lever  and  others,  3  Bro.  C.  C.  605). 

But  the  maxim  of  courts  of  equity,  that  whatever  is  agreed  to  be 
done  is  considered  as  actually  performed,  is  confined  to  cases  where 
the  contract  or  agreement  is  a  valid  one  and  can  be  enforced.  If  the 
contract,  by  reason  of  its  being  by  parol,  is  one  which  neither  a  court 
of  equity  or  of  law  can  enforce,  and  nothing  has  been  done  to  withdraw 
it  from  the  operation  of  the  statute  of  frauds,  the  title  remains  as  it 
was,  both  in  law  and  equity,  unaffected  by  the  parol  agreement ;  and 
whatever  accidental  losses  the  property  may  sustain  must  of  course 
fall  upon  the  owner.  In  such  a  case,  it  is  clear  that  if,  after  the 
parol  agreement  to  purchase,  a  valuable  gold  mine  was  found  upon  the 
premises,  the  purchaser  could  not  compel  a  specific  performance,  un- 
less there  had  been  a  change  of  possession  or  some  other  circumstance 
which  courts  have  determined  sufficient  to  take  a  case  out  of  the 
statute.  Neither  ought  he  to  be  compelled  to  pay  his  purchase  money, 
when  a  fire  has  destroyed  the  buildings  which  formed  the  principal 
inducement  for  the  purchase.  It  would  be  very  inequitable  to  adopt  a 
rule  which  would  not  operate  alike  on  vendor  and  vendee,  which 
would  leave  it  to  the  option  of  one  to  enforce  the  contract  or  not,  as 
it  might  promote  his  interest  or  caprice.  The  case  of  McGowan  v. 
West,  7  Mo.  569,  was  a  case  where  the  purchaser  had  taken  possession, 
and  by  reason  of  that  circumstance  could  have  enforced  a  con- 
veyance notwithstanding  the  contract  was  by  parol.  This  court  would 
not  permit  him  to  hold  on  to  the  land,  and  set  up,  as  a  defense  to  a 


Cll.    2)  CONSEQI^ENCE  OF   SPECIFIC   PERFORMANCE.  141 

suit  upon  his  note  for  the  purchase  money,  that  the  contract  was  a  parol 
one.  In  the  present  case,  there  was  no  change  of  possession,  and  there 
was  no  other  circumstance  which  would  have  enabled  the  plaintiff  to 
enforce  a  specific  performance  of  the  contract  had  the  estate,  instead 
of  being  almost  rendered  valueless,  been  unexpectedly  increased  in 
value.  As  the  contract  could  not  be  enforced  by  the  purchaser,  it 
would  be  unjust  to  enforce  it  against  him.  (Cunnutt  v.  Roberts,  11  B. 
Monr.  42).     .     .     . 


COMBS  V.  FISHER. 

(Kentucky  Court  of  Appeals,  1813,  6  Ky.  51.) 

Combs  being  the  owner  of  a  tract  of  land,  with  a  cabin  and  other  im- 
provements thereon,  on  the  10th  day  of  January,  1806,  sold  the  same  to 
Fisher,  and  promised  to  deliver  possession  thereof  to  Fisher,  in  the 
same  situation  it  then  was,  against  the  first  day  of  January  next  there- 
after. To  recover  the  amount  of  an  obligation  executed  by  Fisher  in 
part  pay  for  the  land  and  improvements.  Combs  prosecuted  suit  and 
obtained  judgment  in  the  Casey  Circuit  Court.  For  the  purpose  of 
obtaining  relief  against  that  judgment,  Fisher  exhibited  his  bill  in 
chancery,  alleging  the  purchase  of  the  land  and  improvements  afore- 
said, the  promise  of  Combs  to  deliver  possession  in  the  same  situation 
it  was  when  the  purchase  was  made,  etc.,  and  charges  that  the  place 
was  not  delivered  in  that  situation,  but  that  the  cabin  was  burned  and 
a  number  of  rails  destroyed,  etc.  He  prayed  and  obtained  an  injunc- 
tion on  the  judgment  at  law,  and  asked  for  general  relief.  The  in- 
junction was  dissolved;  but  on  a  final  hearing  of  the  cause,  the  Circuit 
Court  decreed  compensation  for  the  cabin  and  the  rails,  the  value 
whreof  was  ascertained  by  the  verdict  of  a  jury.  From  which  de- 
cree this  writ  of  error  has  been  prosecuted.  We  think  the  decree 
of  the  Circuit  Court  correct.  The  evidence  in  the  case  satisfactorily 
proves  the  promise  on  the  part  of  Combs  to  deliver  possession  of  the 
place  in  the  same  situation  it  was  when  Fisher  purchased,  and  thai  the 
cabin  was  burned  and  rails  destroyed  before  possession  was  delivered. 
Combs'  express  promise,  therefore,  should  be  binding  on  him.  The  cir- 
cumstance of  the  cabin  having  been  burnt  by  accident,  as  is  urged  by 


142  SPECIFIC   PERFOEMAlSrCE   OF  CONTRACTS  (Part    1 

Combs,  cannot  relieve  him  from  his  express  understanding.  For 
wherever  the  covenant  Is  express,  there  must  be  an  absolute  perform- 
ance, nor  can  it  be  discharged  by  any  collateral  matter  whatever — 
Esp.  N.  P.  270.  The  objection  to  the  smallness  of  the  amount  in  con- 
troversy we  think  not  entitled  to  any  weight.  The  cause  was  finally 
tried  on  the  bill,  answer,  etc.  No  objections  were  taken  to  the  juris- 
diction by  plea  in  abatement,  nor  does  any  exist  on  the  face  of  the 
bill ;  upon  such  a  state  of  pleadings,  no  objection  to  the  jurisdiction 
can  be  maintained  on  the  final  hearing  of  the  cause. 

D^CREii;  AfFirmiJd. 


EDWARDS  V.  WEST. 

(In   Chancery,    1878,   L.    R.   7    Ch.    D.    858.) 

Fry,  J.  The  plaintiffs  in  this  case  allege  that  the  option  of 
purchase  which  was  given  by  the  lease  of  the  29th  of  September, 
1870,  to  be  exercised  by  a  notice  given  on  or  before  the  25th  of  March, 
1875,  and  to  be  carried  into  completion  on  or  before  the  29th  of  Sep- 
tember, 1875,  was  enlarged  by  subsequent  correspondence,  that  by  vir- 
tue of  that  correspondence  a  new  contract  was  constituted  under  which 
the  29th  of  September,  1876,  was  substituted  for  the  25th  of  March, 
1875,  and  that  the  option  was  exercised  on  the  28th  of  September. 

I  will  assume,  for  the  purpose  of  the  present  judgment,  that  the 
Plaintiffs  are  correct  in  that  contention.  There  are,  therefore,  four 
dates  material  to  consider;  first,  that  of  the  contract  creating  the  op- 
tion ;  secondly,  that  of  the  injury  to  the  premises ;  thirdly,  that  for  the 
exercise  of  the  option ;  and  fourthly,  that  for  the  completion  of  the 
purchase  according  to  that  option. 

Now  the  point  which  I  am  about  to  decide  arises  from  the  pay- 
ment of  a  sum  of  between  £11,000  and  £12,000  by  the  insurance  offices 
to  the  Defendant  consequent  upon  the  injury  to  the  property  by  fire  on 
the  6th  of  May,  1876.  The  Plaintiffs  contend  that  that  money  so  re- 
ceived by  the  Defendant  was  received  by  him  as  part-payment  of  the 
£14,000,  which  the  Plaintiffs,  under  the  option,  were  bound  to  pay; 
and  that  contention  has  been  supported  by  three  methods  of  argument. 


Cll.    2)  CONSEQUENCE  OF   SPECIFIC    PERFORMANCE.  14o 

In  the  first  place,  it  has  been  said  that  by  the  law  of  England, 
the  exercise  of  the  option  causes  it  to  relate  back  to  the  time  of  the 
creation  of  the  option  in  such  a  matter  as  to  render  the  property  for 
this  purpose  property  of  the  purchaser  as  from  the  date  of  the  contract 
which  gave  the  option ;  so  that  here,  although  the  option  was  given  by 
a  contract  made  in  April,  and  not  exercised  till  the  28th  of  September, 
yet  that  when  it  was  so  exercised  on  the  28th  of  September,  it  operat- 
ed retrospectively,  and  made  the  property  the  property  of  the  pur- 
chaser as  from  the  month  of  April  preceding,  and  consequently  made 
the  vendor  trustee  of  the  fruits  of  the  property  for  the  purchaser. 
Now  it  appears  to  me  that  such  a  conclusion  would  be  highly  inconven- 
ient, because  it  would  place  a  person  under  the  obligations  which  rest 
upon  a  trustee,  or  make  him  free  from  them,  by  reference  to  an  act 
which  was  not  performed  until  a  future  day;  and  the  retrospective 
conversion  of  a  person  into  a  trustee  of  property  is  a  result  eminently 
inconvenient.     .     . 

Upon  that  general  principle,  then,  I  should  hold  that  the  argument 
is  untenable.  But,  then  I  am  told  that  the  case  is  covered  by  authority, 
and  for  that  purpose  my  attention  is  very  properly  drawn  to  the  cases 
which  began  with  Lawes  v.  Bennett,  1  Cox,  167,  and  which  shew  that 
where  there  is  a  contract  giving  an  option  to  purchase  real  estate,  and 
the  option  is  not  exercised  till  after  the  death  of  the  person  who  creat- 
ed the  option,  nevertheless  the  produce  of  the  sale  goes  as  part  of  his 
personal  estate,  and  not  as  part  of  his  real  estate.  Now,  whether 
Lawes  v.  Bennett  is  or  is  not  consistent  with  the  general  principle 
upon  which  conversion  has  been  held  to  exist,  it  is  not  for  me  to  say. 
It  is  enough  for  me  to  say  that  the  case  has  been  followed  in  numerous 
other  cases,  though  it  has  been  observed  upon  by  more  than  one  Judge 
as  somewhat  difficult  of  explanation.  I  think  that  the  language  of 
Lord  Eldon  in  Townley  v.  Bedwell,  14  Ves.  591,  and  of  Vice-Chancellor 
Kindersley  in  Collingwood  v.  Rew,  3  Jur.  (N.  S.)  785,  shows  that  they 
were  not  satisfied  that  that  case  was  consistent  with  the  general  prin- 
ciples which  were  applicable  to  cases  of  conversion ;  and  therefore, 
although  I  should  implicitly  follow  Lawes  v.  Bennett  in  a  casse  between 
the  real  and  personal  representatives  of  the  person  who  granted  the 
option,  I  do  not  think  that  I  am  at  liberty  to  extend  it  so  as  to  imply 
that  there  is  conversion  from  the  date  of  the  contract  giving  the  option 
as  between  the  vendor  and  the  purchaser  who  claim  under  it.  It  is 
to  be  borne  in  mind  that  no  authority  can  be  produced  which  has  ex- 


144  SI'ECTFIC   PERFORMAlsrCE   OE  CONTRACTS  (Part    1 

tended  the  doctrine  of  Lawes  v.  Bennett  in  the  shghtest  degree  beyond 
what  was  decided  in  that  case.  The  principle,  whatever  it  be,  has  never 
been  appHed  except  as  between  the  real  and  the  personal  representa- 
tives of  the  original  creator  of  the  option,  and  I  for  one  shall  not  ex- 
tend it,  because  I  think  that  it  is  limited  by  the  general  principle  to 
which  1  have  adverted.  Therefore,  upon  that  ground,  I  hold  that  there' 
is  no  conversion  of  the  estate  from  an  earlier  date  than  the  28th  of  Sep- 
tember, when  the  notice  was  given.  The  fire  having  taken  place,  and 
the  insurance  money  having  been  received  at  an  earlier  date,  the  intend- 
ed purchaser  has  no  right,  upon  the  general  principles  of  conversion, 
to  assert  a  title  to  that  money.      .     .     . 


SECTION  VL  PARTIAL  PERFORMANCE  WITH  COMPENSA- 
TION. 


O'KANE  v.  RISER. 

(Indiana  Supreme  Court,  1865,  25   Ind.  168.) 

FrazER,  C.  J.  .  .  .The  payment  of  the  money  and  the  conveyance 
of  an  unincumbered  title  were  dependent  acts,  and,  at  law,  there  could 
be  no  recovery  unless  such  a  title  was  ofifered  on  the  day.  McCulloch 
V.  Dawson,  1  Ind.  413.  It  follows  that  in  the  present  case,  the  suit  on 
the  note  can  only  be  sustained,  if  at  all,  as  being  in  equity  to  compel  a 
specific  performance,  time  not  being  regarded  in  equity  as  so  strictly 
of  the  essence  of  the  contract.  But  one  who  comes  into  equity  seeking 
to  compel  a  specific  performance  must  show  that  he  has  performed, 
or  offered  to  perform,  the  acts  on  his  part  to  be  performed,  which  con- 
stituted the  consideration  of  the  contract  which  he  asks  the  court  to 
compel  the  other  party  to  perform.  This  is  thoroughly  settled  by  the 
authorities,  acting  upon  the  maxim  that  "he  who  seeks  equity  must  do 
equity."  It  is  also  in  entire  harmony  with  the  principles  of  justice  and 
honesty.  The  purchaser  here  agreed  to  pay  his  money  for  an  unin- 
cumbered title,  not  for  the  mere  covenant  of  the  vendor  against  in- 


Cll    2)        PARTIAL     PERFORMANCE     WITH     COMPENSATION.  14G 

CLimbrances.  He  purchased  the  land,  not  the  vendor's  contract,  and 
having  contracted  for  the  former  unincumbered,  a  court  of  equity  will 
not  compel  him  to  take  it  with  on  unpaid  mortgage  upon  it,  and  the 
covenant  of  a  solvent  party  against  the  mortgage.  The  power  of  the 
court  to  compel  a  specific  performance  is  an  extraordinary  power,  and 
will  not  be  exercised  in  behalf  of  a  party  who  is  either  unwilling  or 
unable  to  do  that  for  which  the  defendant  agreed  to  pay. 

We  cannot  perceive  that  any  influence,  in  such  a  case,  ought  to  be 
given  to  the  fact  that  the  purchaser  had  knowledge  that  the  incum- 
brance would  not  be  due  on  the  day  fixed  for  making  the  conveyance. 
It  was  certainly  competent  for  the  parties  to  contract  for  its  removal 
before  its  maturity.  They  did  so  contract  in  this  case,  and  must  abide 
by  their  agreement. 

The  judgment  is  reversed,  with  costs,  and  the  cause  remanded  for 
a  new  trial. 


■  HILL  V.  BUCKLEY. 

(High  Court  of  Chancery,  1811,  17  Ves.  394.) 

The  Master  of  the  Rolls  (Sir  William  Grant).  The  facts  of 
this  case  are  very  few ;  and  there  is  very  little  controversy  upon  them. 
In  the  particular,  which  was  sent  by  the  Defendant's  agent  to  the 
Plaintifif's,  which  is  the  basis  of  the  subsequent  negotiation,  the  woods, 
called  the  Kestle  Woods,  including  the  Gulberry  Marsh,  were  repre- 
sented as  containing  two  hundred  and  seventeen  acres  and  ten  perches. 
In  fact  there  was  not  that  quantity  by  about  twenty-six  acres.  No  de- 
ception was  intended.  The  Defendant's  agent  fell  into  a  mistake; 
the  nature  and  cause  of  which  now  distinctly  appear :  but  I  do  not 
think  myself  warranted  by  any  evidence  in  the  cause  to  infer,  that  the 
Plaintifif  knew  the  real  quantity.  A  very  intimate  acquaintance  with 
the  premises  would  not  necessarily  imply  knowledge  of  their  exact 
contents;  while  the  particularity  of  the  statement  descending  to  perch- 
es, would  naturally  convey  the  notion  of  actual  admeasurement.  Where 
a  misrepresentation  is  made  as  to  the  quantity  though  innocently,  I 
apprehend,  the  right  of  the  purchaser  to  be  to  have  what  the  vendor 
can  give ;  with  an  abatement  out  of  the  purchase-money  for  so  much  as 
1  Ivi.— 10 


146  SPECIFIC   PEEFORMANCE   OF  CONTRACTS  (Part    1 

the  quantity  falls  short  of  the  representation.  That  is  the  rule  gener- 
ally ;  as,  though  the  land  is  neither  bought  nor  sold  professedly  by  the 
acre,  the  presumption  is,  that  in  fixing  the  price  regard  was  had  on 
both  sides  to  the  quantity,  which  both  suppose  the  estate  to  consist 
of.  The  demand  of  the  vendor  and  the  offer  of  the  purchaser  are 
supposed  to  be  influneced  in  an  equal  degree  by  the  quantity,  which 
both  believe  to  be  the  subject  of  their  bargain:  therefore  a  rateable 
abatement  of  price  will  probably  leave  both  in  nearly  the  same  relative 
situation,  in  which  they  would  have  stood,  if  the  true  quantity  had  been 
originally  known;  and  I  do  not  think  I  could  upon  any  principle  in 
the  case  of  Mortlock  v.  Buller  to  which  this  bears  no  resemblance, 
exempt  these  defendants  from  this  equity  upon  the  ground  of  their  be- 
ing trustees,  and  not  owners. 

But  there  is  a  difficulty  in  this  case  from  the  nature  of  the  mistake 
which  must  have  influenced  the  vendors  in  their  estimate  of  the  price 
in  a  manner,  that,  if  a  rateable  abatement  were  now  to  be  decreed, 
would  be  extremely  disadvantageous  to  them ;  for,  though  they  believ- 
ed they  had  two  hundred  and  seventeen  acres  to  give  to  the  purchas- 
er, and  must  be  supposed  to  have  asked  a  price  in  proportion,  yet  they 
did  not  believe  that  it  was  all  woodland.  They  imagined,  that  twenty- 
eight  acres  consisted  only  of  hedges  and  fences,  and  other  waste. 
They  could  not  certainly  set  the  same  value  upon  that,  though  perhaps 
it  was  considered  of  some  value,  as  upon  land,  covered  with  wood  of 
mature  growth ;  therefore,  by  a  rateable  abatement  from  the  purchase- 
money  it  is  clear  they  must  allow  to  the  purchaser  much  more  than  they 
would  have  received  from  him ;  and  consequently  they  would  be  com- 
pelled to  accept  less  than  it  was  ever  in  their  contemplation  to  take. 
That  is  not  all.  The  purchaser  also  would  obtain  a  better  bargain 
than  he  ever  had  in  his  contemplation.  He  was  in  the  course  of  the 
negotiation  furnished  with  the  value  of  the  woods,  qua  wood,  as  ascer- 
tained in  the  year  1805.  The  value  being  given,  it  was  immaterial,  in 
that  respect,  whether  the  woods  were  spread  over  a  greater  or  less 
number  of  acres.  The  valuation  had  no  reference  to  the  quantity  of 
ground.  All  the  wood  upon  the  estate  was  comprehended ;  and  it  was 
represented  to  the  purchaser,  that  what  he  was  to  get  was  wood,  which 
in  1805,  was  of  the  value  of  £3500.  He  has  got  all  the  wood,  upon 
which  that  value  was  set.  Is  he  entitled,  also,  to  the  value  of  twenty- 
six  additional  acres  of  wood;  which  he  would  have  in  effect  by  an 


Cll    2)        PAETIAL     PERFORMANCE    WITH     COMPENSATION.  147 

abatement,  made  to  him  out  of  the  purchase-money  upon  the  propor- 
tion merely  of  quantity  and  price.  The  wood  would  have  been  no  more 
valuable  to  him,  if  in  fact  it  had  occupied  two  hundred  and  seventeen 
acres,  instead  of  one  hundred  and  eighty-eight;  nor  would  he  have 
paid  a  shilling  more  for  it;  as  the  price  of  the  wood  was  not  fixed 
with  reference  to  the  ground,  which  it  covered.  Therefore  it  is  only 
in  the  price  of  the  soil,  and  not  in  the  price  of  the  wood  that  the  pur- 
chaser could  be  injured  by  the  mistake  of  the  vendor;  the  particular 
representing  the  wood  as  occupying  two  hundred  and  seventeen  acres : 
the  purchaser  has  the  right  quantity  of  w^ood ;  but  not  of  soil.  He  is 
therefore  entitled  to  some  abatement ;  as  they  gave  him  reason  to  ue- 
lieve,  that  he  was  to  obtain  two  hundred  and  seventeen  acres  of  soil ;  but 
the  abatement  is  to  be  only  so  much  as  soil,  covered  with  wood,  would  be 
worth,  after  deducting  the  value  of  the  wood ;  and  with  an  abatement, 
to  be  ascertained  upon  that  principle,  the  argument  ought  to  be  earned 
into  execution.      .     .     . 


JOYNER  V.  CRISP. 
(North  Carolina  Supreme  Court,  1912,  158  N.  C.  199,  73  S.  E.  1004.) 

Brown,  J.  .  .  .The  facts  are,  as  appears  by  the  pleadings:  That 
the  property  in  question,  known  as  the  "Peebles  Place,"  belonged  to 
the  feme  plaintiff  for  her  life,  and  after  her  death  to  her  children  some 
of  whom  are  minors.  At  the  time  the  contract  referred  to  was  enter- 
ed into  between  the  plaintiff  and  the  defendant,  the  defendant  admits  he 
knew  the  status  of  the  title,  and  there  is  nothing  in  the  pleadings  them- 
selves which  indicate,  or  even  allege,  that  any  imposition  was  practiced 
upon  the  defendant,  or  that  he  entered  into  this  contract  except  with 
his  eyes  open.  The  contract  upon  its  face  indicates  plainly  that  it  does 
not  lie  within  the  power  of  the  plaintiffs  of  their  own  will  to  comply 
with  it.  It  appears  upon  its  face  that  the  plaintiffs  own  practically 
nothing  but  a  life  estate,  and  that  the  only  method  to  carry  out  the 
contract  was  by  appealing  to  the  judicial  tribunal  to  decree  a  sale  of 
the  infants'  estate.  The  following  excerpts  from  the  contract  are 
plainly  indicative  that  resort  to  a  judicial  tribunal  was  absolutely  es- 
sential to  its  performance,  viz:  "This  option  is  to  remain   in    force 


148  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Plll't    1 

for  ninety  days,  or  until  such  time  as  the  parties  of  the  first  part  can 
obtain  by  special  proceedings  in  the  superior  court  of  Pitt  county  a 
judicial  decree  confirming  to  the  party  of  the  second  part  a  fee-simple  . 
title."  Again :  "Upon  the  performance  of  the  above  stipulations  by  the 
party  of  the  second  part,  the  parties  of  the  first  part  will  agree  to  exe- 
cute in  their  own  proper  persons  and  by  the  decree  of  the  superior  court 
a  deed  in  fee  simple,"  etc. 

The  plaintiffs  in  this  case  had  no  power  to  enter  into  a  contract  to 
sell  their  children's  land,  and  a  mere  promise  to  resort  to  a  court  for 
the  purpose  of  decreeing  a  sale  of  it  cannot  possibly  be  enforced,  for 
it  is  beyond  the  power  of  the  plaintiffs  to  predicate  what  the  judgment 
of  the  court  may  be.  Upon  this  principle  it  is  held  that  a  party  cannot 
recover  upon  a  contract  wherein  a  guardian  who  owned  certain  interest 
in  land  of  which  his  ward  was  part  owner  agreed  to  institute  and  to 
carry  through  court  proceedings  necessary  to  the  consummation  of  a 
sale  or  exchange  of  such  property.  Zander  v.  Feely,  47  111.  App.  660; 
LeRoy  v.  Jacobosky,  136  N.  C.  444,  48  S.  E.  796,  67  L.  R.  A.  470. 
There  have  been  cases  where  guardians  have  entered  into  such  con- 
tracts, and,  upon  failure  to  perform  them,  have  been  held  liable  in 
damages  personally.  Mason  v.  Waitt,  4  Scam.  (111.)  127,  and  Mason 
v.  Caldwell,  5  Gilman  196,  48  Am.  Dec.  330.  But  we  find  no  instance 
where  such  contract  has  been  specifically  performed  by  decree  of 
court,  unless  it  was  to  the  ward's  interest. 

In  regard  to  the  contention  that  the  defendant  is  entitled  to  the  par- 
tial performance  and  conveyance  of  the  life  estate,  and  damages  in  the 
way  of  abatement  of  the  price,  it  may  be  said  that  we  recognize  the 
general  rule  that,  where  the  vendor  has  not  substantially  the  whole  in- 
terest he  has  contracted  to  sell,  yet  the  purchaser  caix  insist  on  having 
all  that  the  vendor  can  convey  with  compensation  for  the  difference. 
But  in  this  case  it  is  apparent  on  the  face  of  the  contract  that  it  was  to 
be  performed  as  a  whole,  stand  or  fall  as  an  entirety,  and  therefore 
it  cannot  be  specificially  enforced  as  to  part. 

It  is  admitted  by  the  defendant  in  his  answer  that  he  knew  that 
rhe  land  in  fee  belonged  to  the  plaintiff's  children.  It  semes  to  be 
well  setled  that  the  rule  that  when  a  person  makes  a  contract  for  the 
sale  of  real  estate,  in  which  he  has  only  limited  interest,  he  may  be 
compelled  in  equity  to  convey  as  much  of  the  property  as  lies  in  his 
power  to  convey,  with  a  deduction  from  the  agreed  price,  does  not 


Ch    2)        PARTIAL     PEEFOEMAXCE     WITH     COMPENSATION.  140 

apply  where  the  purchaser  at  the  time  of  the  sale  had  notice  of  the 
defect  in  the  vendor's  title.     .     .     . 


WANAMAKER  v.  BROWN. 

(South   Carolina   Supreme   Court,   1907,   77   S.    C.   64,   57   S.    E.    665.) 

The  following  is  the  circuit  decree,  omitting  the  formal  judgment : 
"The  above-entitled  action  for  the  specific  performance  of  a  con- 
tract for  the  sale  of  real  property,  with  the  reservation  of  a  portion 
of  the  purchase  money,  as  indemnity  against  an  outstanding  incum- 
brance of  an  inchoate  right  of  dower,  came  on  to  be  heard  before  me. 
on  the  pleadings  and  testimony  taken  and  reported  by  the  master. 
From  the  testimony,  I  find  as  a  mater  of  fact:  That  on  August  31, 
1905,  the  defendant,  being  the  owner  of  a  certain  lot  of  land,  described 
in  the  complaint,  and  hereinafter  described  in  this  decree,  agreed  to 
sell  and  convey  the  same  to  the  plaintiff  by  a  good  and  sufficient  deed 
of  conveyance.  .  .  .  That  on  September  23,  1905,  the  plaintiff 
tendered,  and  offered  to  pay,  to  the  defendant  the  sum  of  $5,400,  as  the 
balance  of  the  purchase  money  due  under  said  agreement,  and  demand- 
ed the  delivery  of  a  good  and  sufficient  deed  of  conveyance  to  said  pro- 
perty. Whereupon  the  defendant  tendered  a  deed  of  conveyanc  to  said 
property,  which  contained  the  usual  covenants  of  warranty  against  the 
grantor  and  all  others,  but  did  not  have  indorsed  upon  it,  nor  was  it 
accompanied  by,  renunciation  of  the  dower  right  of  Mrs.  Mary  Ann 
Brown,  the  wife  of  the  defendant,  in  said  property.  The  plaintiff  re- 
fused to  accept  the  deed  tendered  on  the  ground  that  there  was  not 
indorsed  upon  it,  nor  was  it  accompanied  by,  a  renunciation  of  said 
dower  rights,  but  offered,  and  still  offers,  to  accept  said  deed  of  con- 
veyance, and  pay  the  balance  of  the  purchase  money,  if  the  defendant 
would  consent  to  a  deduction  from  the  purchase  money  of  sucli  amount 
as  might  be  ascertained  by  the  courts  to  be  the  value  of  such  dower 
rights,  or  to  the  retention  by  plaintiff  of  such  porportion  of  the  pur- 
chase money  as  might  be  necessary  to  indemnify  him  against  the  claim 
of  Mary  Ann  Brown  for  dower,  so  long  as  said  claim  might  continue  to 
exist  as  an  incumbrance  on  said  property;  the  payment  of  such  amount 
so  reserved  to  be  made  to  the  defendant  at  such  lime  as  the  incnm- 


]50  SPECIFIC   PERFOKMANCE   OF  CONTEACTS  (Pai't    1 

brance  of  the  outstanding  inchoate  right  of  dower  should  be  removed, 
and  to  be  secured  by  a  mortgage  on  the  property  conveyed.  The  de- 
fendant declined  this  proposition  or  to  deliver  any  other  deed  than 
that  tendered  by  him,  on  the  ground  that  his  wife  refused  to  renounce 
dower,  and  that  he  was  not  called  upon  to  give  any  other  indemnity 
against  such  claim  than  that  contained  in  the  usual  covenant  of  war- 
ranty contained  in  the  deed  tendered.  The  defendant  in  57  years  of 
age,  and  his  wife  52.  If  the  dower  were  now  accrued,  it  would  be  one- 
sixth  the  value  of  the  property. 

"As  matter  of  law,  I  conclude,  under  authority  of  Payne  v.  Melton, 
69  S.  C.  Z7Z,  48  S.  E.  277,  that  an  outstanding  inchoate  right  of  dow- 
er is  such  an  incumbrance  as  a  purchaser  should  be  protected  against. 
This  protection  may  be  given  either  by  reducting  from  the  purchase 
money  the  actual  value  of  such  inchoate  right  of  dower  at  the  time 
of  the  purchase,  as  indicated  in  that,  and  other  cases,  or  by  providing 
for  a  retention  of  a  portion  of  the  purchase  money,  secured  by  a  mort- 
gage on  the  land,  until  such  dower  right  has  vested,  or  ceased  to  exist, 
as  an  indemnity  against  such  outstanding  incumbrance.  This  latter 
provision  seems  to  me  more  equitable  and  just  than  the  former,  on 
account  of  the  difficulty  of  arriving  at  the  present  money  value  of  the 
inchoate  right.     .     .     . 

Pope,  C.  J.  The  facts  of  this  case  are  set  out  in  the  decree 
of  his  honor,  the  circuit  judge,  which  is  affirmed  for  the  reasons  therein 
stated.  Appeal  dismisse;d 


SAVINGS  BANK  CO.  v.  PARISETTE. 

(Supreme  Court  of  Ohio,  1903,  68  O.  St.  450,  67  N.  E.  896.) 

Spear,  J.  It  is  insisted  by  counsel  for  plaintifif  in  error  that  the 
stipulation  in  the  option  is  for  a  deed  conveying  the  entire  proper- 
ty free  from  any  and  all  rights,  claims  and  incumbrances,  and  of  the 
latter  class  is  the  inchoate  right  of  dower;  that  the  obligation,  there- 
fore, rested  on  the  vendor  to  clear  the  title,  and  convey  free  of  all  claims 
of  every  kind;  that  failing  this  the  vendee  should  have  been  allowed 
to  retain  so  much  of  the  purchase  money  as  will  protect  his  title  against 
such  inchoate  right  of  dower,  and  the  vendor  decreed  to  convey  on  re- 


Ch    2)        PARTIAL     PEEFORMANCE     WITH     COMPENSATION.  151 

ceiving  the  remaining  part  of  the  purchase  money,  and  that  the  re- 
fusal of  the  circuit  court  to  so  adjudge  was  error.       .     .     . 

What  was  the  contract  specific  performance  of  which  plaintiff  de- 
manded, and  what  the  breach,  if  any?  The  parties  were  the  vendor, 
the  husband,  and  the  vendee,  the  plaintiff.  The  paper  itself  carries  the 
information  that  it  was  when  drawn  contemplated  to  be  executed  by 
some  one  other  than  the  vendor,  and  since  the  plaintiff  was  aware  that 
he  had  a  wife  living,  the  inference  is  natural  that  she  was  the  person 
whose  signature  had  been  expected.  The  paper  further  showed  that 
she  had  not  signed,  and  the  fact  found  is  that  she  had  made  no  agree- 
ment to  sign  or  sell  the  property,  or  release  her  inchoate  right  of 
dower.  Furthermore,  the  absence  of  her  signature  would  suggest  a 
refusal  by  her.  The  Company  knew,  therefore  that  it  was  dealing  with 
the  husband  alone  as  to  his  right  and  title  in  the  property,  it  knew  that 
the  wife  could  not  be  compelled  to  sign,  and  that,  therefore,  the  con- 
tract was  impossible  of  specific  execution  if  construed  to  include  her 
dower.  It  knew  that  it  was  accepting  a  contract  which  on  its  face  did 
not  purport  to  sell  any  interest  but  that  of  the  husband,  and  especially 
did  not  purport  to  sell  or  agree  to  convey  any  inchoate  dower  of  the 
wife.  In  this  situation  of  affairs  the  Company  chose  to  agree  to  pay 
the  stipulated  price  for  just  what  the  option  purported  to  sell.  No 
fraud  or  overreaching  or  mistake  of  any  kind  is  charged.  The  vendor 
is  ready  to  convey  just  what  the  stated  terms  of  his  contract  obligate 
him  to  convey.  How  can  the  Company  reasonably  demand  that  the 
court  import  into  the  contract  a  stipulation  to  convey  by  a  deed  contain- 
ing a  covenant  against  this  dower  right,  when  no  agreement  of  that 
character,  nor  respecting  incumbrances  of  any  kind,  is  expressed,  and 
when  in  all  probability,  had  such  a  demand  been  made  of  the  vendor, 
he  would  have  refused  to  comply  with  it  ?  We  think  it  cannot.  The 
effect  of  the  construction  contended  for  by  counsel  would  be  either  to 
attempt  to  arrive  at  a  sum  to  be  deducted  absolutely  by  a  process  ad- 
mittedly speculative,  or  to  suspend  the  payment  of  a  considerable 
portion  of  the  purchase  money  to  the  grantor  during  the  joint  lives  of 
himself  and  his  wife,  which  it  seems  to  us,  could  never  have  been  with- 
in the  contemplation  of  the  parties  when  this  optional  contract  was 
signed.  Plaintiff  was  in  a  court  of  equity  pressing  an  inequitable  de- 
mand. We  think  it  was  properly  refused.  On  the  plaintiff's  own  con- 
struction of  the  option  the  Company  is  in  the  attitude  of  one  wiio  takes 


152  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    1 

the  promise  of  another  to  do  that  which  it  is  known  he  cannot  perform 
except  by  the  concurrence  of  a  third  person.  Such  purchaser  contracts 
with  full  notice  of  the  uncertainty  attending  the  seller's  ability  to  per- 
form, and,  not  having  been  misled  to  his  injury  cannot  now  ask  the 
extraordinary  aid  of  a  court  of  conscience  in  repairing  such  loss,  if 
any,  as  he  has  sustained  by  the  vendor's  failure  to  complete  his  con- 
tract.      .     .     . 


SECTION  VII.  DEFENSES. 


TUMLINSON  V.  YORK 

(Texas  Supreme  Court,   1858,   20  Texas   694.) 

Hemphill,  Ch.  J.  This  was  a  suit  for  specific  performance  of 
a  bond  for  title  to  land.  It  was  commenced  in  the  county  court, 
where  the  prayer  for  performance  was  refused.  On  appeal  to  the 
district  court,  this  judgment  was  reversed,  and  the  cause  has  been 
brought  by  appeal  to  this  court.  We  are  of  opinion  that  there  was 
error  in  the  judgment  of  the  district  court.  The  bond  does  not  recite 
any  consideration.  There  is  no  allegation  in  the  petition,  that  a  valu- 
able consideration  was  paid  by  the  vendee,  and  although  there  is  no 
statement  of  facts,  and  we  cannot  ascertain  from  the  record  what 
facts  were  in  proof,  yet  there  being  no  allegation  of  the  essential  fact 
of  valuable  consideration,  we  cannot  presume  that,  in  violation  of  the 
rules  of  evidence,  such  fact  was  established  by  proof.  The  averments 
and  proof  must  correspond ;  and  this  being  the  rule,  we  must  presume 
there  was  no  evidence  of  valuable  consideration. 

It  is  a  well  established  rule,  that  specific  performance  of  an  agree- 
ment to  convey  land  will  not  be  enforced,  unless  founded  on  a  valuable 
consideration.  Where  the  receipt  of  such  consideration  is  expressed 
in  the  agreement,  or  bond,  its  existence  would  be  prima  facie  presum- 
ed; but  where  not  so  expressed,  or  admitted  by  the  vendor  in  the 
pleadings,  it  must  be  established  by  proof ;  and  being  a  material  fact,  it 


Oh.    2)  DEFENSES.  153 

must  be  averred  that  the  proof  may  be  admitted.  Hoze  v.  Davis,  14 
Tex.  331 ;  Short  v.  Price,  17  id.  397.  In  the  latter  case,  reference  was 
had  to  art.  710  of  the  Digest,  and  it  was  held  inapplicable  to  cases 
where  the  plaintiff  must  show  a  valuable  consideration  as  prerequisite 
to  the  decree,  and  where,  on  principles  of  equity  jurisprudence,  the  seal 
imparts  no  efficacy  to  the  instrument  on  which  the  suit  is  brought; 
that  the  only  effect  of  the  article  would,  in  such  cases,  be,  that  where 
a  valuable  consideration  is  expressed  in  the  instrument,  it  could  not  be 
impeached  by  the  defendant,  unless  under  oath;  whereas  on  general 
principles  of  equity,  this  would  not  be  required.     .     .     . 


MANSFIELD  v.  HODGDON. 

(Alassachusetts  Supreme  Court,   1888,  147   Mass.  304,   17   N.   E.  544.) 

Holmes,  J.  .  .  .  The  defendant  Hodgdon's  undertaking  not 
having  been  a  mere  offer,  but  a  conditional  covenant  to  sell,  bound  him 
irrevocably  to  sell  in  case  the  plaintiff  should  elect  to  buy,  and  should 
pay  the  price  within  thirty  days.  The  usual  doctrine  as  to  conditions 
applies  to  such  a  covenant,  and  as  the  covenantor  by  his  own  conduct 
caused  a  failure  to  comply  with  the  condition  in  respect  of  time,  he 
waived  it  to  that  extent.  And  upon  the  same  principle  he  exonerated 
the  plaintiff  from  making  any  tender  when  the  new  terms  had  been 
agreed  upon,  by  wholly  repudiating  the  contract.  Carpenter  v.  Hol- 
comb,  105  Mass.  280,  282.  Ballon  v.  Billings,  136  Mass.  307.  Gormely 
V.  Kyle,  137  Mass.  189.  Lowe  v.  Harwood,  139  Mass.  133.  136.  If  it 
be  true,  as  testified  for  the  defendant,  that  he  also  objected  to  signing 
a  deed  conveying  the  mountain  lot,  this  was  a  ftu^ther  excuse  for  the 
delay.    Calvin  v.  Collins,  128  Mass.  525,  527. 

A  covenant  to  sell  is  not  voluntary  in  such  a  sense  that  equity  will  re- 
fuse specific  performance.  If  the  defendant  conveys,  he  will  get 
quid  pro  quo. 


WOOLUMS  V.  ITORSLEY. 

(Kentucky  Court  of  Appeals,  ISOa,  !):5  Ky.  582,  :>()  S.  W.  781.) 

lioi/r,  C.  J.     .     .     .     In  December,  1888,  liiis  suit  was  brought   lor 
a  specific  performance  of   the  contract.     The   main   defense   is   that 


154  SPECIFIC   PERFORMANCE  OF  CONTRACTS  (Part    1 

it  was  procured  through  undue  advantage,  and  under  such  circum- 
stances that,  in  equity,  its  performance  should  not  be  decreed.     .     .     . 

There  is  a  distinction  between  the  case  of  a  plaintiff  asking  a  specific 
performance  of  a  contract  in  equity,  and  that  of  a  defendant  resist- 
ing such  a  performance.  Its  specific  execution  is  not  a  matter  of  abso- 
lute right  in  the  party,  but  of  sound  discretion  in  the  court.  It  re- 
quires less  strength  of  case  on  the  side  of  the  defendant  to  resist  the 
bill,  than  it  does  upon  the  part  of  the  plaintiff  to  enforce  it.  If  the 
court  refuses  to  enforce  specifically  the  party  is  left  to  his  remedy  at 
law. 

Thus  a  hard  or  unconscionable  bargain  will  not  be  specifically  en- 
forced, nor,  if  the  decree  will  produce  injustice  or  under  all  the  circum- 
stances be  inequitable,  will  it  be  rendered.  In  other  words,  a  court  of 
equity  will  not  exercise  its  power  in  this  direction  to  enforce  a  claim 
which  is  not,  under  all  the  circumstances,  just  as  between  the  parties, 
and  it  will  allow  a  defendant  to  resist  a  decree,  where  the  plaintiff  will 
not  always  be  allowed  relief  upon  the  same  evidence. 

A  contract  ought  not  to  be  carried  into  specific  performance  unless 
it  be  just  and  fair  in  all  respects.  When  this  relief  is  sought  ethics 
are  considered,  and  a  court  of  equity  will  sometimes  refuse  to  set  aside 
a  contract,  and  yet  refuse  its  specific  performance.     .     .     . 

The  appellee  testifies  that  he  did  not  know  anything  as  to  the  mineral 
value  of  this  land  when  the  contract  was  made ;  but  it  is  evident  he 
had  a  thorough  knowledge  of  the  value  in  this  respect  of  lands  gener- 
ally in  that  section,  and  of  the  developments  then  in  progress  or  near  at 
hand. 

All  this  was  unknown  to  the  appellant.  It  is  evident  his  land  was 
valuable  almost  altogether  in  a  mineral  point  of  view.  While  it  is 
not  shown  what  it  was  worth  at  the  date  of  the  contract,  yet  it  is 
proven  to  have  been  worth  in  April,  1889,  fifteen  dollars  an  acre,  and 
that  this  value  arises  almost  altogether  from  its  mineral  worth;  and 
yet  the  appellee  is  asking  the  enforcement  of  a  contract  by  means  of 
which  he  seeks  to  obtain  all  the  oil,  gas,  and  minerals,  and  the  virtual 
control  of  the  land,  at  forty  cents  an  acre.  The  interest  he  claims  un- 
der the  contract  is  substantially  the  value  of  the  land.  Equity  should 
not  help  out  such  a  harsh  bargain. 

The  appellee  shows  pretty  plainly,  by  his  own  testimony,  that  when 
the  contract  was  made  he  was  advised  of  the  probability  of  the  build- 


Oh.    2)  DEFENSES.  155 

ing  of  a  railroad  in  that  locality  in  the  near  future.  His  agent,  when 
the  trade  was  made  assured  the  appellant  that  he  would  never  be  both- 
ered by  the  contract  during  his  life  time.  He  was  lulled  in  the  belief 
that  the  Rip  Van  Winkle  sleep  of  that  locality  in  former  days  was  to 
continue ;  and  the  grossly  inadequate  price  of  this  purchase  can  only  be 
accounted  for  upon  the  ground  that  the  appellant  was  misled  and  acted 
under  gross  misapprehension. 

The  contract  was  not  equitable  or  reasonable,  or  grounded  upon 
sufficient  consideration,  and  no  interest  has  arisen  in  any  third  party. 
A  court  of  equity  should,  therefore,  refuse  its  specific  enforcement,  but 
the  appellant  should  have  what  was  in  fact  paid,  with  its  interest ;  and 
when  this  is  done  his  petition  should  be  dismissed.     .     .     . 


FLEMING  V.  BURNHAM. 

(New  York  Court  of  Appeals,  1885,  100  N.  Y.  1,  2  N.  E.  905.) 

Andrews,  J.  The  most  serious  objection  made  by  the  purchaser 
relates  to  the  sufficiency  of  the  deed  of  February  14,  1833,  from 
Thomas  McKie  and  Andrew  Stark,  two  of  the  four  executors 
named  in  the  will  of  John  McKie,  to  Gerardus  De  Forest,  to  pass  title 
to  the  premises  in  question.     .     .     . 

The  purchaser  is  entitled  to  a  marketable  title,  free  from  reason- 
able doubt.  The  purchaser  bids  on  the  assumption  that  there  are  no 
undisclosed  defects.  The  purchaser  pays  and  the  seller  receives  a 
consideration,  regulated  in  view  of  this  implied  condition.  Objections 
which  are  merely  captious  or  mere  suggestions  of  defects  which  no  rea- 
sonable man  would  consider,  although  within  the  range  of  possibility 
or  those  which  are  clearly  invalid  by  the  law  as  settled,  whatever  doubts 
may  at  a  former  time  have  existed  as  to  the  question  raised,  are  not 
available  to  a  purchaser,  and  will  be  disregarded.  But  the  question 
presented  to  the  court  on  an  application  to  compel  a  purchaser  on  a  ju- 
dicial sale  who  raises  objections  to  the  title  tendered  to  complete  the 
purchase,  is  not  the  same  as  if  it  was  raised  in  a  direct  proceeding  be- 
tween the  very  parties  to  the  right.  Where  all  the  parties  in  interest 
are  before  the  court  and  the  court  has  jurisdiction  to  decide,  they  are 
concluded  by  the  judgment  pronounced,  so  long  as  it  stands  unrevers- 


156  SPECIFIC   PERFOEMANCE    OF  CONTRACTS  (Part    1 

ed,  however  imperfectly  the  evidence  or  facts  were  presented  upon 
which  the  adjudication  was  made,  or'  however  doubtful  the  adjudica- 
tion may  have  been  in  point  of  law.  If  the  controversy  involves  a  dis- 
puted question  of  fact,  or  the  evidence  authorizes  inferences  or  pre- 
sumptions of  fact,  the  finding  of  the  tribunal  makes  the  fact  what  it  is 
found  to  be  for  the  purpose  of  the  particular  case,  although  the  evi- 
dence of  the  fact  may  be  weak  and  inconclusive,  or  although  it  is  ap- 
parent that  there  are  sources  of  information  which  have  not  been  ex- 
plored, which  if  followed  might  have  removed  the  obscurity.  The  par- 
ties are  nevertheless  concluded  in  such  a  case,  because  they  were  par- 
ties to  a  judicial  controversy  before  a  tribunal  constituted  for  the  very 
purpose  of  deciding  rights  of  persons  and  property  and  before  which 
they  had  an  opportunity  to  be  heard.  But  the  court  stands  in  quite  a 
different  attitude,  where  it  is  called  upon  to  compel  a  purchaser  to 
take  title  under  a  judicial  sale,  who  asserts  that  there  are  outstanding 
rights  and  interests  not  cut  ofif  or  concluded  by  the  judgment  under 
which  the  sale  was  made.  The  objection  may  involve  a  mere  question 
of  fact  or  it  may  involve  a  pure  question  of  law  upon  undisputed  facts. 
In  either  case  it  may  very  well  happen  that  the  question  is  so  doubtful 
that,  although  the  court  would  decide  it  upon  the  facts  disclosed,  in  a 
proceeding  where  all  the  parties  interested  were  before  the  court, 
nevertheless  it  would  decline  to  pass  upon  it  in  a  preceding  to  compel 
a  purchaser  to  take  title  and  would  relieve  him  from  his  purchase. 
The  reason  is  obvious.  The  purchaser  is  entitled  to  a  marketable 
title.  A  title  open  to  a  reasonable  doubt  is  not  a  marketable  title.  The 
court  cannot  make  it  such  by  passing  upon  an  objection  depending  on 
a  disputed  question  of  facts,  or  a  doubtful  question  of  law,  in  the  ab- 
sence of  the  party  in  whom  the  outstanding  right  was  vested.  He 
would  not  be  bovmd  by  the  adjudication  and  could  raise  the  same  ques- 
tion in  a  new  proceeding.  The  cloud  upon  the  purchaser's  title  would 
remain,  although  the  court  undertook  to  decide  the  fact  or  the  law, 
whatever  moral  weight  the  decision  might  have.  It  would  especially 
be  unjust  to  compel  a  purchaser  to  take  a  title,  the  validity  of  which 
depended  upon  a  question  of  fact,  where  the  facts  presented  upon  the 
application  might  be  changed  on  a  new  inquiry  or  are  open  to  op- 
posing inferences.  There  must  doubtless  be  a  real  question  and  a  real 
doubt.  But  this  situation  existing,  the  purchaser  should  be  discharged. 
(Shriver  v.  Shriver,  86  N.  Y.  575,  and  cases  cited;  Hellreigel  v.  Man- 
ning, 97  id.  56).     ,     .     . 


Cll.    2)  DEFENSES.  157 

CRABTREE  v.  WELLES. 

(Supreme  Court  of  Illinois,  1857,   19   111.  55.) 

\\'elles  and  his  wife  had  verbally  contracted  with  Crabtree  to  sell 
him  a  piece  of  land  for  one  hundred  and  fifty  dollars;  fifty  dollars 
was  paid  at  the  time  of  the  bargain,  and  Crabtree  was  to  have  a  deed 
when  he  would  pay  the  other  one  hundred  dollars. 

Crabtree  tendered  the  remaining  one  hundred  dollars,  but  Welles 
refused  to  make  the  conveyance,  but  prior  to  the  tender  of  the  one 
hundred  dollars.  Welles  sued  Crabtree  before  a  justice  of  the  peace 
for  a  debt  due  him  from  Crabtree,  when  the  latter  attempted  to  set  off 
against  the  claim  the  fifty  dollars  advanced  for  the  land,  but  this  set-off 
was  not  allowed.  Crabtree,  after  having  made  the  tender  of  the  one 
hundred  dollars,  as  the  price  of  the  land,  which  was  refused  by  Welles, 
brought  an  action  to  recover  back  the  fifty  dollars  originally  advanced. 
On  the  trial  of  the  suit  for  the  recovery  of  this  sum,  it  was  attempted  to 
defeat  the  recovery  by  showing  that  a  set-off  had  been  attempted  in  the 
first  suit  between  the  parties,  and  before  the  tender  of  the  one  hundred 
dollars.  The  Circuit  Court,  Breese,  Justice,  presiding,  gave  judg- 
ment, upon  the  finding  of  the  jury  for  fifty  dollars,  whereupon  Crab- 
tree prayed  an  appeal.       .     .     . 

Caton,  C.  J.  The  law  is,  that  one  who  advances  money 
in  part  payment  of  a  parol  purchase  of  land,  cannot  recover  it  back, 
till  he  has  offered  to  fulfill  the  parol  agreement,  and  the  other  party  has 
repudiated  it  by  refusing  to  perform. 

If  he  repudiates  it  himself,  without  the  default  of  the  other  party, 
he  must  lose  what  he  has  paid.  Such  parol  agreement  is  not  abso- 
lutely void,  but  is  only  voidable,  and  is  binding  on  both  parties,  and  may 
be  enforced  either  in  a  court  of  law  or  equity,  unless  the  statute  of 
frauds  be  interposed,  to  relieve  the  party  from  his  obligations  under  it. 
If  a  party  who  receives  money  or  its  equivalent,  under  such  parol  con- 
tract, afterwards  repudiates  it,  the  law  will  raise  an  assumpsit  on  his 
part  to  refund  the  payment  recovered ;  for  he  shall  not  return  the 
money  under  the  contract,  while  he  denies  his  obligation  to  perform  it, 
but  until  he  refuses  to  perform  il  the  law  will  not  imply  a  promise  to 
refund   the   payment   received   under   it.     Welles,   therefore,   had   no 


].58  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Part    1 

cause  of  action  against  Crabtree  for  the  fifty  dollars  which  he  had  paid 
him  on  the  parol  agreement  until  after  he  had  placed  himself  in  a 
proper  position  by  demanding  of  Crabtree  that  he  go  on  and  perform 
the  parol  agreement  upon  tendering  him  the  remaining  hundred  dol- 
lars, and  Crabtree  had  thereupon  refused  to  comply.  The  law  cannot 
presume  a  promise  to  refund  that  money  till  such  refusal  has  taken 
place,  and,  till  then,  no  cause  of  action  existed  in  favor  of  Welles 
against  Crabtree  on  account  of  that  advance.  At  the  time  of  the  trial 
of  the  former  cause  which  was  relied  upon  as  a  bar  to  this  action 
Welles  had  not  made  the  tender  of  the  last  payment,  and  Crabtree  had 
not  repudiated  the  parol  agreement,  so  that  no  liability  then  existed 
against  him  to  refund  the  fifty  dollars.  The  question,  then,  is,  wheel- 
er his  attempt  to  bring  in,  and  recover  it  back  on  the  trial  of  the  form- 
er action  between  the  same  parties,  is  a  bar  to  this  action.  On  this 
point  there  ought  not  to  be  any  doubt  or  controversy.  At  the  time  of 
that  trial,  the  money  was  not  due,  and  for  that  reason  he  could  not 
then  recover  it.  The  account  then  presented  was,  or  must  be  pre- 
sumed to  be,  for  fifty  dollars,  then  claimed  to  be  due,  which  he  did  not 
and  could  not  prove.  This  is  for  fifty  dollars  not  then  due,  but  which 
has  since  become  due,  and  consequently,  could  not  be  barred  by  any- 
thing that  was  then  due.  Suppose  on  the  former  trial,  Welles  had  filed, 
as  a  set-ofif,  a  note  executed  by  Crabtree  to  him  for  fifty  dollars,  which, 
upon  its  face,  was  not  due  till  thirty  days  thereafter,  could  it  be  pre- 
tended that  the  abortive  attempt  to  set  it  off  on  the  former  trial  would 
be  a  bar  to  an  action  upon  the  note  instituted  after  its  maturity  ?  The 
statement  of  the  proposition  is  enough  to  illustrate  the  utter  fallacy  of 
his  whole  defense.  The  Circuit  Court  decided  properly,  and  the  judg- 
ment must  be  affirmed. 


NIBERT  v.  BAGHURST. 

(New  Jersey  Court  of  Chancery,  1890,  47  N.  J.  Eq.  201,  20  Atl.  252.) 

GrKEn,  V.  C.  The  bill  of  complaint  in  this  action  is  filed  by 
Francis  Nibert  against  George  Baghurst  and  wife  and  Francis 
Phillips,  for  the  specific  performance  of  a  contract  for  the  sale  of 
lands  and  the  conveyance  of  the  same  according  to  the  alleged  terms 
thereof.     .     .     . 


Ch.    2)  DEFENSES.  159 

The  defendants  resist  the  appHcation  for  an  injunction,  on  the 
grounds  that  the  alleged  agreement  was  by  parol,  and  is  not  enforce- 
able under  the  statute  of  frauds,  and  that  it  was  made  on  Sunday,  and 
is  void  under  the  laws  of  this  state. 

The  petitioner  seeks  to  avoid  the  objection  based  on  the  provision 
of  the  statute  of  frauds,  first,  on  the  ground  that  there  had  been  such 
a  part  performance  of  the  contract  as  to  take  the  case  out  of  the 
statute,  under  the  rules  which  obtain  in  the  courts  of  equity,  and  that 
there  was  a  sufficient  memorandum  under  the  statute  of  this  state.     .     , 

The  clear  weight  of  the  testimony  is,  that  the  possession  of  Nibert, 
so  far  from  its  being  by  the  act  or  consent  of  Baghurst  and  under  the 
agreement  was  forcible  and  against  his  positive  and  reiterated  protest. 
Possession  taken  and  held  under  such  circumstances  can  not  be  con- 
strued to  be  a  part  performance  of  the  contract.       .     .     . 

The  equity  arising  from  the  expenditure  of  money  in  the  building 
of  a  house  is  based  on  the  rightful  possession  by  Nibert  of  the  prop- 
erty, and  the  knowledge  of  Baghurst  and  his  acquiescence  in  such 
acts  of  assumed  ownership. 

Equity  proceeds  on  the  ground  that  it  would  be  a  fraud  for  the  vend- 
or to  allow  the  vendee  to  continue  in  possession  and  expend  his  money 
in  improvements,  so  as  to  render  it  impossible  for  the  parties  to  be  re- 
stored to  their  original  situations,  confessedly  on  the  faith  of  an  agree- 
ment of  sale,  and  then  try  to  avail  himself  of  the  statute  of  frauds  to 
avoid  the  contract.  Young  v.  Young,  18  Stew.  Eq.  27,  34;  Eyre  v. 
Eyre,  4  C.  E.  Gr.  102 ;  Green  v.  Richards,  8  C.  E.  Gr.  32 ;  Brewer  v. 
Wilson,  2  C.  E.  Gr.  180,  185;  Pom.  Cont.  §  104;  Pom.  Eq.  Jur.  § 
1409. 

The  bare  statement  of  the  principle  presupposes  acquiescence  on  the 
part  of  the  vendor,  and  acquiescence  assumes  knowledge  of  the  vend- 
ee's acts.  "For,  to  constitute  fraud,  there  must  coincide,  in  one  and 
the  same  person,  knowledge  of  some  fact  and  conduct  inequitable 
having  regard  to  such  knowledge."    Fry  Spec.  Perf.  §  389. 

We  have  seen  that  the  possession  of  Nibert  was  against  the  wish 
and  warning  of  Baghurst,  and  it  clearly  appears  that  the  latter  com- 
menced proceedings  in  ejectment  as  soon  as  he  heard  the  building 
was  being  erected.  The  erection  of  the  house  and  the  possession  of  the 
land  are  both  of  the  same  character.  They  fail  as  elements  of  part  per- 
formance, because  done  without  the  knowledge  or  acquiescence  of 
the  vendor.     .     .     . 


160  SPECIFIC   PEEFORMANCE   OF  CONTEACTS  (Piirt    1 

MORRISON  V.  HERRICK. 

(Illinois  Supreme  Court,   1889,   130   111.   631,   32  N.   E.    537.) 

Bailey,  T-  Regarding  the  oral  contract  for  a  lease  as  suffficient- 
ly  proved,  the  question  arises  whether  such  part  performance  has 
been  shown  as  will  take  it  out  of  the  operation  of  the  Statute  of 
Frauds.     .     .     . 

The  evidence  shows  beyond  controversy  that  the  complainants  ex- 
pended large  sums  of  money  in  making  permanent  improvements  upon 
the  demised  premises  and  in  fitting  up  and  furnishing  the  same  for  use 
in  carrying  on  their  business,  and  it  is  equally  beyond  controversy  that 
these  expenditures  were  made  under  and  in  reliance  upon  the  original 
contract  for  a  lease  for  a  further  term  of  five  years.  So  far  then  as  the 
making  of  valuable  improvements  can  constitute  an  element  of  part 
performance,  the  complainants  have  established  their  right  to  a  de- 
cree. It  is  true  the  improvements  were  all  made  before  the  term  con- 
templated by  the  oral  agreement  was  to  commence,  and  while  the  com- 
plainants were  in  possession  under  their  former  lease,  but  that  cir- 
cumstance does  not  seem  to  us  to  be  material,  so  long  as  the  improve- 
ments were  in  fact  made  in  reliance  upon  and  in  pursuance  of  the  pro- 
visions of  the  oral  agreement. 

The  more  difficult  question  relates  to  the  possession  which  the  com- 
plainants must  establish  and  rely  upon  as  an  act  in  part  performance. 
It  is  undoubtedly  the  rule  that  acts  of  part  performance,  whatever 
they  may  be,  must  refer  exclusively  to  the  contract,  and  be  such  as 
would  not  have  been  performed  but  for  such  contract.  They  must  be 
such  as  can  not  be  explained  consistently  with  any  other  contract  than 
the  one  alleged,  that  is  to  say,  they  must  refer  to,  result  from,  and  be 
done  in  pursuance  of  such  contract.  If  therefore  possession  is  relied 
upon  as  an  act  of  part  performance,  it  must  be  possession  under  the 
contract  sought  to  be  enforced.  The  continuance  of  possession  taken 
before  the  contract  was  made  is  accordingly  not  usually  held  to  be 
sufficient.  2  Reed  on  Stat,  of  Frauds,  sec.  585.  This  rule  applies  es- 
pecially to  cases  where  the  previous  holding  is  under  a  lease,  for  as  the 
tenant  may  lawfully  continue  in  possesion  until  notice  to  quit,  such 
continuance  in  possession  is  presumptively  referable  to  the  lease.  It 
has  therefore  been  sometimes  questioned  whether,  as  between  landlord 


Ch.    2)  DEFENSES.  IGl 

and  tenant,  part  performance  is  possible.  But  the  better  doctrine 
would  seem  to  be,  that  one  continuing  in  possesion  is  at  liberty  to 
prove,  if  he  can,  that  his  possession,  after  the  termination  of  the  form- 
er lease,  is  under  the  oral  contract.     .     .     . 

In  Mundy  v.  Joliffe,  5  Mylne  &  Craig,  167,  a  tenant  who  went  in- 
to possesion  of  premises  under  a  former  lease,  obtained  from  his  land- 
lord an  oral  contract  for  a  renewal  of  his  lease  for  a  further  term, 
said  contract  stipulating,  among  other  things,  for  the  making  of  certain 
improvements  on  the  demised  premises.  The  tenant  continued  in  pos- 
session, and  after  the  stipulated  improvements  were  made,  brought  his 
bill  for  a  specific  performance  of  the  contract,  and  it  was  held,  as  a 
matter  about  which  there  could  be  no  doubt,  that  a  sufficient  part  per- 
formance was  shown.     .     .     . 

Applying  this  rule  to  the  present  case,  we  are  disposed  to  hold,  that, 
while,  prima  facie,  the  complainants,  by  remaining  in  possession  after 
the  expiration  of  the  term  to  their  former  lease,  assumed  the  position 
of  tenants  holding  over,  the  presumption  that  they  did  so  is  not  con- 
clusive, but  is  subject  to  be  rebutted  by  evidence  tending  to  a  contrary 
conclusion.  Of  this  character  is  the  evidence  of  the  expenditures  made 
by  them  by  way  of  improvements  under  and  in  performance  of  their 
oral  agreement.  These  expenditures  serve  to  explain  and  character- 
ize their  subsequent  holding  over  after  the  termination  of  their  former 
lease.  Presumptions  are  thereby  raised  which  are  sufficiently  cogent 
to  overcome  the  ordinary  presumption  that  a  tenant  holding  over  does 
so  under  his  former  lease.  It  is  against  all  ordinary  probability  that, 
after  having  expended  $6000  or  over  in  reliance  upon  and  in  perform- 
ance of  the  agreement  for  a  lease  for  five  years,  they  were  content  to 
assume  the  attitude  of  mere  tenents  holding  over,  thus  placing  them- 
selves in  a  position  where  their  landlord  would  be  at  liberty  to  termi- 
nate their  tenacy  absolutely  at  the  expiration  of  the  first  year,  and  thus 
deprive  them,  without  the  possibility  of  adequate  recompense,  of  much 
the  larger  part  of  the  benefit  to  be  derived  from  their  expendi- 
tures.    .     .     . 

HALE  V.  HALE. 

(Supreme  Court  of  Appeals  of  Virginia,  1894,  90  Va.  728,  19  S.  E.  739.) 

Lewis,  P.     .     .     .     The  equitable  doctrine  of  part-performance  is 
also  invoked ;  but  as  to  this,  we  may  say,  as  was  said  in  a  similar  case 
1  Eq.— 12 


]62  SPECIFIC   PERFORMANCE   OF  CONTEACTS  (Part    1 

ill  Massachusetts,  that  "there  has  been  no  part-performance  which 
amounts  to  anything."  Gould  v.  Mansfield,  103  Mass.,  408.  In  that 
case  there  was,  as  here,  an  alleged  oral  agreement  between  two  sisters 
to  make  mutual  or  reciprocal  wills,  and  each  made  a  will  accordingly. 
Afterwards  one  of  the  sisters  made  a  different  will,  and  died.  The 
survivor  then  filed  a  bill  for  the  specific  execution  of  the  agreement, 
but  a  demurrer  to  the  bill  was  sustained,  on  the  ground  that  the  case 
was  within  the  statute  of  frauds. 

Notwithstanding  the  criticism  upon  that  case  in  the  argument  at 
the  bar,  we  are  of  opinion  that  it  was  decided  upon  correct  principles. 
Not  only  is  it  a  cardinal  feature  of  a  will  that  it  is  ambulatory  until 
the  testator's  death,  but  acts  of  part-performance  by  the  party  seeking 
specific  execution,  to  take  a  case  out  of  the  statute,  must  be  of  such 
an  unequivocal  nature  as  of  themselves  to  be  evidence  of  the  existence 
of  an  agreement;  as,  for  example,  where,  under  a  parol  agreement  to 
sell  land,  the  purchaser  is  put  into  possesion,  and  proceeds  to  make 
improvements.  2  Min.  Insts.  (4th  ed.),  853;  3  Pom.  Eq.,  sec.  1409. 
In  the  language  of  Lord  Hardwicke,  the  act  of  part-performance  "must 
be  such  as  could  be  done  with  no  other  view  or  design  than  to  perform 
the  agreement."  Gunter  v.  Halsey,  Amb.,  586.  "  The  principle  of  the 
cases,"  said  Sir  William  Grant  in  Frame  v.  Dawson,  14  Ves.,  387,  "is 
that  the  act  must  be  of  such  a  nature  that,  if  stated,  it  would  of  itself 
infer  the  existence  of  some  agreement;  and  then  parol  evidence  is 
admitted  to  show  what  the  agreement  is." 

In  Phillips  V.  Thompson,  1  Johns.  Ch.,  131,  Chancellor  Kent  said: 
"It  is  well  settled  that  if  a  party  sets  up  part-performance  to  take  a 
parol  agreement  out  of  the  statute,  he  must  show  acts  unequivocally 
referring  to,  and  resulting  from,  that  agreement;  such  as  the  party 
would  not  have  done,  unless  on  account  of  that  very  agreement,  and 
with  a  direct  view  to  its  performance ;  and  the  agreement  set  up  must 
appear  to  be  the  same  with  the  one  partly  performed.  There  must 
be  no  equivocation  or  uncertainty  in  the  case."  To  the  same  effect  is 
Wright  V.  Puckett,  22  Gratt.,  370. 

This  whole  subject  was  very  carefully  considered,  both  upon  prin- 
ciple and  authority,  in  Maddison  v.  Alderson,  a  recent  and  instructive 
case  in  the  House  of  Lords.  (8  App.  Cas.,  467.)  In  that  case  the  ap- 
pellant was  induced  to  serve  the  intestate  as  his  housekeeper  without 
wages  until  his  death  by  an  oral  promise  on  his  part  to  leave  her  an  in- 


Ch.    2)  DEFENSES.  163 

terest  in  certain  real  estate ;  and  he  made  a  will  for  that  purpose,  which 
he  signed,  but  which  failed  for  want  of  due  attestation.  Mr.  Justice 
Stephen,  before  whom  the  case  was  tried  in  the  first  instance,  held  that 
there  was  a  contract  which  had  been  partly  performed;  but  on  appeal, 
first  to  the  Court  of  Appeal,  and  afterwards  to  the  House  of  Lords,  this 
ruling  was  held  to  be  erroneous ;  and  the  principle  was  laid  down  that  an 
act  of  part -performance,  to  take  a  case  out  of  the  statute,  must  be  suf- 
ficient of  itself,  without  any  other  information  or  evidence,  to  satisfy 
the  court,  from  the  circumstances  it  has  created  and  the  relations  it 
has  formed,  that  they  are  only  consistent  with  the  assumption  of  the 
existence  of  a  contract  the  terms  of  which  equity  requires,  if  pos- 
sible, to  be  ascertained  and  enforced. 

This  is  so,  because,  as  was  said  in  the  same  case,  the  defendant 
in  a  suit  founded  on  such  part  performance  is  really  "charged"  upon 
the  equities  resulting  from  the  acts  done  in  execution  of  the  contract, 
and  not  (within  the  meaning  of  the  statute)  upon  the  contract  itself. 
Hence,  until  such  acts  are  shown  as  of  themselves  imply  the  existence 
of  some  contract,  parol  evidence  to  show  the  terms  of  the  contract 
relied  on  is  inadmissible.  Browne,  Stat.  Frauds,  sec.  455 ;  Dale  v. 
Hamilton,  5  Hare,  381 ;  Maddison  v.  Alderson,  supra. 

Now  the  alleged  acts  of  part  performance  in  the  present  case,  taken 
singly  or  collectively,  do  not  bring  the  case  within  these  principles. 
The  making  and  preserving  the  wills,  under  the  circumstances  stated  in 
the  bill,  while  they  are  acts  consistent  with,  are  yet  not  demonstrative 
of,  the  existence  of  any  contract  between  the  parties,  or,  in  other 
words,  they  do  not  unequivocally  show  that  there  was  a  contract. 
Noil  constat,  the  wills  were  not  made  from  motives  of  love  and  af- 
fection, and  independently  of  any  contract  or  agreement ;  and  this 
being  so,  parol  evidence  to  establish  the  alleged  contract  would  not  be 
admissible.     .     .     . 


CATON  V.  CATON. 

(In  Chancery,  186G,  L.  R.,  1  Ch.   App.   137.) 

Extract  from  finding  of  facts  by  Stuart,  V.  C: 
"What  is  proved  in  the  present  case  is  that  the  testator  and  his  in- 
tended wife  having  proposed  to  make  a  settlement  (the  draft  of  which 


164  SPECIFIC    PERFOEMANCE    OF  CONTEACTS  (Pai't    1 

was  prepared  in  accordance  with  that  memorandum  which  is  in  his 
own  handwriting),  changed  their  intention  as  to  the  machinery,  and, 
instead  of  a  settlement,  it  was  proposed,  and  agreed  to  by  both  parties, 
that  the  testator,  the  intended  husband,  should  by  will  do  that  which  it 
was  originally  intended  he  should  do  by  settlement."     .     .     . 

Lord  Cranworth,  L.  C.  .  .  .  The  same  clause  of  the  statute 
which  forbids  the  bringing  of  an  action  on  any  parol  contract  made  in 
consideration  of  marriage,  also  forbids  the  bringing  of  any  action 
on  any  parol  contract  for  the  sale  of  land.  But,  though  Courts  of 
equity  have  held  themselves  bound  by  this  last  enactment,  yet  they 
have  in  many  cases  felt  themselves  at  liberty  to  disregard  it  when 
to  insist  upon  it  would  be  to  make  it  the  means  of  effecting  instead  of 
preventmg,  fraud.  This  is  the  ground  on  which  they  require  specific 
performance  of  a  parol  contract  for  the  sale  or  purchase  of  land 
when  that  contract  has  been  in  part  performed.  The  right  to  relief  in 
such  cases  rests  not  merely  on  the  contract,  but  on  what  has  been  done 
in  pursuance  of  the  contract.  His  Honour  the  Vice-Chancellor  Stuart, 
according  to  the  report  of  this  case,  appears  to  have  thought  that  the 
decisions  under  this  head  of  equity  (and  they  are  very  numerous)  are 
applicable  to  the  present  case,  but  with  all  deference  to  the  Vice- 
Chancellor,  I  cannot  think  that  this  is  a  correct  view  of  the  law. 

That  marriage  itself  is  no  part  performance  within  the  rule  of  equity 
is  certain.  Marriage  is  necessary  in  order  to  bring  a  case  within  the 
statute,  and  to  hold  that  it  also  takes  the  case  out  of  the  statute  would 
be  a  palpable  absurdity. 

It  was  not,  however,  on  the  mere  fact  of  the  marriage  that  the  Vice- 
Chancellor  rested  his  judgment.  His  Honour  relied  mainly  on  the 
circumstance  which  he  considered  to  have  been  well  proved,  that,  pre- 
viously to  the  marriage,  the  intended  husband,  in  conformity  with  the 
verbal  promise  he  had  solemnly  made  to  his  wife,  prepared  a  will 
whereby  he  gave  to  her  all  that  he  had  agreed  to  give  her ;  and  further, 
that  he  had  executed  this  will  in  due  form  of  law  immediately  after  the 
solemnization  of  the  marriage.  I  do  not  however  think,  even  if  all 
this  had  been  clearly  made  out  in  proof  that  it  amounts  to  any  part 
performance  so  as  to  prevent  the  operation  of  the  statute,  The  ground 
on  which  the  Court  holds  that  part  performance  takes  a  contract  out 
of  the  purview  of  the  Statute  of  Frauds  is,  that  when  one  of  two  con- 
tracting parties  has  been  induced,  or  allowed  by  the  other,  to  alter  his 


Ch.    2)  DEFENSES.  165 

position  on  the  faith  of  the  contract,  as  for  instance  by  taking  possession 
of  land,  and  expending  money  in  building  or  other  hke  acts,  there  it 
would  be  a  fraud  in  the  other  party  to  set  up  the  legal  invalidity  of  the 
contract  on  the  faith  of  which  he  induced,  or  allowed,  the  person  con- 
tracting with  him  to  act,  and  expend  his  money.    But  such  cases  bear 
no  resemblance  to  that  now  under  consideration.     The  preparing  and 
executing  of  the  will  caused  no  alteration  in  the  position  of  the  lady, 
and  I  presume  it  will  not  be  argued  that  any  consequence  can  be  at- 
tached to  acts  of  part  performance  by  the  party  sought  to  be  charged. 
If  I  agree  with  A.  by  parol,  without  writing,  that  I  will  build  a  house 
on  my  land,  and  then  will  sell  it  to  him  at  a  stipulated  price,  and  in 
pursuance  of  that  agreement  I  build  a  house,  this  may  afford  me  ground 
for  compelling  A  to  complete  the  purchase,  but  it  certainly  would  af- 
ford no  foundation  for  a  claim  by  A  to  compel  me  to  sell  on  the  ground 
that  I  had  partly  performed  the  contract.     The  circumstance  of  the 
preparing  and  executing  the  will  (supposing  it  satisfactorily  proved) 
might  afford  strong  evidence  of  the  existence  of  the  parol  contract  in- 
sisted on,  if  that  were  a  matter  into  which  we  were  at  liberty  to  in- 
quire ;  but  it  can  have  no  effect  as  giving  validity  to  an  otherwise  in- 
valid contract.     I  must  further  observe  that  the  nature  of  the  alleged 
agreement  was  such  as  hardly  to  admit,  even  on  the  part  of  the  party 
to  be  charged,  of  anything  like  part  performance.     As  a  will  is  neces- 
sarily until  the  last  moment  of  life  revocable,  a  contract  to  make  any 
specified  bequest,  even  when  a  will  having  that  effect  has  been  duly 
prepared  and  executed,  is  in  truth  a  contract  of  a  negative  nature — a 
contract  not  to  vary  what  has  been  so  prepared  and  executed.    I  do  not 
see  how  there  can  be  part  performance  of  such  a  contract.     .     .     . 


SLINGERLAND  v.  SUNGERLAND 

(Supreme  Court  of  Minnesota,  1888,  39  Minn.  197,  39  N.  W.  146.) 

GiLFiLLAN,  C.  J.  The  parties  stand  in  the  relation  of  father 
and  son.  The  defendant,  the  father,  owned  a  large  farm  in  the  county 
of  Dodge.  On  the  5th  day  of  March,  1866,  there  were  pending  in 
the  district  court  in  said  county  five  several  actions  or  proceedings, — 
one  an  action  by  plaintiff  against  this  defendant  to  recover  about 
$15,000,  for  services  rendered  between  June,  1879,  and  January,  1886. 


166  SPECIFIC   PERFORMANCE  OF  CONTRACTS  (Pai't    1 

.  ,  .  These  actions  and  proceedings  were  all  defended,  the  con- 
troversy in  each  being  really  between  this  plaintiff  and  defendant. 
They  were  all  on  the  calendar  of  the  March  term,  1886,  of  the  court 
for  trial,  and  the  first  was  on  trial,  when  on  said  5th  day  of  March, 
1886,  the  defendant  orally  offered  to  plaintiff  that  if  he  would  dismiss 
said  actions  brought  by  him,  and  turn  over  to  defendant  said  money 
in  the  county  treasury,  he  (defendant)  would  convey  said  farm  to  him, 
with  the  stock,  machinery,  and  personal  property,  on  the  day  when  he 
should  be  married  to  a  certain  young  lady,  to  whom  he  was  then,  and 
for  some  time  had  been  engaged  to  be  married  as  soon  as  his  pecuniary 
circumstances  would  warrant  his  assuming  the  support  of  a  family, 
which  engagement,  and  the  reasons  for  delay  in  it,  were  known  to  and 
approved  of  by  defendant.  Plaintiff  thereupon  orally  accepted  said 
offer,  and  forthwith  dismissed  said  actions,  and  withdrew  his  claim  to 
the  money  involved  in  said  mandamus  proceeding,  and  such  money  was 
thereupon  paid  over  to  defendant,  and  the  proceeding  dismissed.  On 
the  31st  of  March,  1886,  plaintiff  and  said  young  lady  were  married. 
From  March  5th  till  some  time  after  the  marriage  defendant  intended 
to  carry  out  his  agreement,  but  on  December  8th,  following,  on  a 
formal  demand  by  plaintiff  for  a  conveyance,  he  refused  to  execute  it, 
and  denied  any  agreement  or  obligation  to  do  so.     .     .     . 

In  this  case  no  remedy  is  apparent  that  will  restore  plaintiff  to  the 
situation  he  was  in,  or  put  him  in  as  good  a  situation  as  he  was  in,  at  the 
time  of  making  the  agreement.  If  the  actions  and  proceedings  then 
pending  could  be  reinstated  by  vacating  the  dismissals  still  plaintiff 
irretrievably  lost  the  opportunity  to  try  them  at  the  March  term,  1886. 
An  opportunity  to  try  them  a  year  or  two  after  that  time,  when 
perhaps,  plaintiff's  ability  to  present  his  claims  would  not  be  the  same, 
would  not  be  an  equivalent  for  the  right  to  try  them  at  that  term. 
But  they  could  not  all  be  reinstated.  The  proceeding  against  the 
county  auditor  certainly  could  not  be,  nor  could  a  new  similar  proceed- 
ing be  instituted.  If  the  bank,  relying  on  the  settlement  between  plain- 
tiff and  defendant,  and  the  dismissals  of  the  actions  against  it,  changed 
its  position,  so  that  restoring  the  actions  would  operate  as  a  fraud 
upon  it,  those  actions  could  not  be  reinstated ;  and,  for  the  same  reason, 
new  actions  for  the  same  causes  could  not  be  maintained  against  it. 
As  to  the  action  against  defendant,  plaintiff  might  succeed  in  having 
them  reinstated,  or,  if  he  did  not  succeed,  might  bring  new  actions; 


Ch.    2)  DEFENSES.  167 

but,  in  the  latter  event,  a  part  of  the  cause  of  action  in  one  of  them 
would,  in  the  meantime,  have  become  barred  by  the  statute  of  limita- 
tions. 

The  only  other  suggestion  of  a  remedy  to  plaintiff  is  that  he  might 
have  brought  an  action  for  damages  for  the  loss  sustained  by  his  dis- 
missal of  the  former  actions  and  proceedings.  Such  an  action  would  be 
novel,  though  it  might  be  maintained.  The  difficulties  in  the  way  of 
prosecuting  it,  so  that  the  recovery  would  put  him  in  as  good  position 
as  he  was  in  before,  would  be  great.  He  would  have  to  show  to  what 
extent  he  had  lost  his  original  claims,  and  the  value  of  what  was  so 
lost.  Take  the  cases  against  the  bank.  He  would  have  to  show  that  his 
rights  as  against  it  were  gone,  and  then  show  his  claims  against  it. 
And  so  with  the  other  actions.  The  dismissals  were  not  made  on  a 
money  consideration,  nor  did  the  parties  intend  the  value  of  the  actions 
to  be  measured  by  a  money  standard.  In  no  way  could  the  loss  of  the 
advantage  which  the  right  to  try  the  actions  at  the  March  term,  1886, 
gave  him  be  estimated  in  damages,  nor  any  recovery  he  had  for  it. 
Among  all  the  cases  we  have  cited,  in  no  one  was  it  clearer  than  an 
action  for  damages  was  not  an  adequate  remedy  than  it  is  in  this 
case.     .     .     . 


GLADVILLE  v.  McDOLE. 

(Supreme  Court  of  Illinois,  1910,  247  111.  34,  93  N.  E.  8G.) 

Mr.  Justice  Cart  weight.  .  .  .  The  contract  was  verbal,  and 
in  such  a  case  it  must  be  proved  by  competent  evidence  and  be  clear, 
definite  and  unequivocal  in  its  terms.  (Clark  v.  Clark,  122  111.  388.) 
The  evidence  fully  satisfied  that  requirement.  It  was  also  proved,  and 
not  contradicted,  that  Eva  Gladville  fully  performed  the  contract  in 
accordance  with  its  terms,  and  the  only  question  to  be  determined  is 
whether  she  is  entitled  to  a  specific  performance  of  it  although  it  was 
within  the  Statute  of  Frauds  and  invalid  at  law.  The  invalidity  con- 
sisted of  the  fact  that  it  was  not  reduced  to  writing  and  signed,  and 
no  action  at  law  will  lie  upon  such  a  contract.  The  courts  of  equity, 
however,  will  not  permit  the  Statute  of  Frauds,  the  only  purpose  of 
which  is  to  prevent  fraud,  to  be  used  where  the  effect  will  be  to  ac- 


]68  SPECIFIC    PEEFORMANCE    OF  CONTRACTS  (Part    1 

complish  a  fraud  and  where  a  verbal  contract  has  been  performed, 
either  fully  or  in  part,  by  the  party  seeking  the  remedy,  and  the  facts 
are  such  that  it  would  be  a  virtual  fraud  to  permit  the  defendant  to  in- 
terpose the  statute,  a  court  of  equity  will  not  listen  to  that  defense. 
If  the  defendant  has  knowingly  permitted  the  complainant  to  do  acts 
in  performance  of  the  verbal  agreement  and  in  reliance  upon  it,  which 
change  the  relation  of  the  parties  and  prevent  a  restoration  to  their 
former  condition  by  a  recovery  at  law  of  compensation  for  the  acts 
performed,  it  would  be  a  fraud  on  the  complainant  to  permit  the  de- 
fense to  be  made,  and  the  statute,  which  is  intended  to  prevent  fraud, 
would  be  made  the  means  of  fraud.  In  equity  the  rights  and  duties  of 
the  parties  are  the  same  as  they  would  have  been  if  the  contract  had 
been  written  and  signed,  and  unless  the  one  who  has  performed  the 
contract  in  good  faith  can  be  made  whole  in  damages  he  is  left  without 
any  adequate  remedy  at  law,  and  equity  will  compel  the  other  party  to 
do  the  thing  which  was  agreed  to  be  done.  (3  Pomeroy's  Eq.  Jur.  sec. 
1409;  26  Am.  &  Eng.  Ency.  of  Law,— 2d.  ed.— 50.)  Payment  of 
purchase  money,  alone,  will  not  take  the  contract  out  of  the  statute,  for 
the  reason  that  it  can  be  recovered  back,  with  interest,  in  an  action 
at  law.  (Temple  v.  Johnson,  71  111.  13.)  The  same  is  true  of  per- 
sonal services,  which  can  be  estimated  in  money,  for  which  a  recovery 
can  be  had  in  law,  because  the  law  would  in  that  case  afford  a  sufficient 
remedy.  In  this  case  there  could  be  no  recovery  at  law  for  the  labor, 
sacrifices  and  deprivations  of  Eva  Gladville  during  ten  years  of  ser- 
vice, which  were  worth  as  much  as  the  land  was  then  worth,  for  the 
reason  that  any  claim  for  them  was  outlawed  by  the  Statute  of  Limi- 
tations long  ago.  The  mere  fact  of  possession,  without  other  circum- 
stances, would  not  justify  a  decree  for  a  specific  performance,  and  in 
most  cases  the  use  of  the  land  would  be  a  full  compensation  for  all 
injuries  sustained.  The  basis  for  relief  in  a  court  of  equity  is  the 
equitable  fraud  resulting  from  setting  up  the  Statute  of  Frauds  as  a 
defense,  and  there  have  been  many  cases  in  this  court  where  equity 
has  aiTorded  a  remedy  by  specific  performance  if  the  contract  has  been 
performed  by  one  party  in  such  a  way  that  the  parties  cannot  be  placed 
in  statu  quo  or  damages  awarded  which  would  be  full  compensation. 
In  contracts  between  parties  for  the  conveyance  of  land  there  is  usual- 
ly a  provision  for  possession  under  the  contract  at  some  time,  and 
naturally  one  of  the  most  frequent  acts  of  part  performance  is  taking 


Ch.    2)  DEFENSES.  169 

possession  and  making  improvements  on  the  land.  This  court  has  en- 
forced specific  performance  of  verbal  contracts  where  such  possession 
has  been  taken,  coupled  with  payment  of  the  purchase  price,  and  es- 
pecially if  lasting  and  valuable  improvements  have  been  made.  (Ram- 
sey V.  Liston.  25  111.  114;  Langston  v.  Bates,  84  id.  524;  Smith  v.  West, 
103  id.  332;  McNamara  v.  Garrity,  106  id.  384;  Irwin  v.  Dyke,  114  id. 
302 ;  Hall  v.  Peoria  and  Eastern  Railway  Co.  143  id.  163.)  And  a  con- 
tract invalid  at  law  may  be  specifically  enforced  against  the  heirs  of  a 
party  to  such  contract.    Simonton  v.  Godsey  174  111.  28. 

Much  of  the  argument  against  the  right  to  a  specific  performance 
is  devoted  to  the  claim  that  Eva  Gladville  did  not  have  possession  of 
the  land  in  the  lifetime  of  John  P.  Jester  or  Phebe  Jester,  and  that 
there  can  be  no  decree  for  specific  performance  without  such  posses- 
sion. The  keys  were  delivered  to  her  by  Phebe  Jester  a  few  days  before 
the  death  of  Phebe  Jester,  and  she  was  put  in  such  possession  of  the 
property  as  was  consistent  with  existing  conditions  and  circumstances. 
But  if  there  was  no  actual  possession  and  it  was  merely  constructive,  it 
cannot  be  that  equity  w\\\  deny  a  remedy  upon  that  ground,  alone, 
where  the  result  would  be  to  accomplish  a  fraud.  The  cases  where 
possession  has  been  regarded  as  of  controlling  importance  are  cases 
where  the  purchaser  became  entitled  to  posession  under  the  terms  of 
the  contract,  but  in  this  case  Eva  Gladville  was  not  entitled  to  posses- 
sion in  the  lifetime  of  John  P.  Jester  or  Phebe  Jester  but  by  the  very 
terms  of  the  contract  was  to  have  such  possession  after  they  died,  and 
she  took  and  has  held  actual  possession  ever  since  the  death  of  Phebe 
Jester.  To  say  that  possession  in  the  lifetime  of  the  other  party  by  one 
claiming  under  a  verbal  contract  is  indispensable  to  any  remedy  in 
equity,  would  be  to  say  that  there  can  be  no  remedy  where  the  com- 
plainant did  not  become  entitled  to  possession  until  the  death  of  the 
other  party,  although  such  a  rule  would  operate  as  an  unmitigated 
fraud.  The  ground  for  interference  by  a  court  of  equity  being  that 
there  have  been  such  acts  of  performance  on  the  part  of  one  claiming 
the  benefit  of  the  contract  as  would  compel  him  to  suffer  an  injury 
amounting  to  a  fraud  if  the  statute  is  interposed  as  a  defense,  it  would 
be  as  anomalous  as  it  would  be  absurd  to  recognize  nothing  as  perform- 
ance except  taking  possession  of  the  land  when  a  party  could  not 
lawfully  take  such  possession.  To  permit  the  defendants  to  the  bill 
of  Eva  Gladville  to  repudiate  the  contract  because  she  did  not  have 


170  SPECTFIC   PERFOEMANCE   OF  CONTEAOTS  (Part    1 

possession  before  she  became  entitled  to  it,  when  she  has  performed 
her  contract  and  cannot  be  compensated  except  by  an  enforcement 
of  it,  would  be  to  perpetrate  a  fraud  equal  to  any  other.     .     .     . 


YOUNG  V.  OVERBAUGH. 

(New  York  Court  of  Appeals,  1895,  145  N.  Y.,  158,  39  N.   E.   712.) 

Gray,  J.  The  plaintiff  brought  ejectment  to  recover  the  posses- 
sion of  land  and  a  dwelling  thereon,  occupied  by  the  defendant  and 
her  husband.  It  was  conceded  that  the  legal  title  was  in  plain- 
tiff's lestator,  at  the  time  of  his  death;  but  the  defendant  claimed 
that  she  was  the  owner  of  the  equitable  title  to  the  premises,  by 
reason  of  promises  made  by  the  plaintiff's  testator  to  her  and  of 
acts  done  by  her  in  reliance  upon  those  promises.     .     .     . 

In  1872,  Thomas  Cornell,  the  plaintiff's  testator,  was  the  owner 
of  the  premises  in  question.  He  was  the  half-brother  of  the  de- 
fendant and  upon  his  request  she  and  her  husband  had  settled  in  the 
city  of  Kingston.  In  the  year  mentioned,  Mr.  Cornell  asked  the 
defendant's  husband  to  build  a  house  for  the  defendant  on  a  cer- 
tain piece  of  his  property,  at  the  cost  of  $4500,  and  to  bring  the  bills 
to  him  for  payment.  The  house  was  built  at  a  cost  which  exceeded, 
by  about  $1,200,  the  sum  named  by  Mr.  Cornell,  and  the  defend- 
ant subsequently,  made  valuable  permanent  improvements  upon  the 
property;  such  as  building  a  barn,  planting  of  fruit  trees,  putting 
in  a  heating  apparatus,  etc. :  of  all  which  Mr.  Cornell  had  knowledge. 
Other  facts  found  were  that,  after  the  defendant  had  contracted  to 
erect  a  house  upon  the  property,  Mr.  Cornell  had  stated  that  the  house 
was  built  for  the  defendant  and  was  hers;  and  so  spoke  of  it  to 
different  persons  at  different  times.  Upon  one  occasion,  in  the 
year  1876,  upon  the  defendant's  husband  informing  Mr.  Cornell 
that  he  had  found  a  business  at  Yonkers,  which  he  thought  it  would 
be  a  good  thing  to  go  into,  the  latter  replied,  to  the  effect,  that  if  they 
moved  away  from  the  property  where  they  then  resided  the  defendant 
should  not  have  it  and  that  they  would  lose  it.  There  was  this 
specific  finding:  "That  such  improvements,  as  well  as  the  payment 
of  $1,200,  were  made  and  expended  on  the  faith  of   the  promises 


Oh.    2)  DEFENSES.  171 

by  Cornell,  to  give  the  property  to  Mrs.  Overbaugh  (this  defendant), 
and  all  such  moneys  were  expended,  and  improvements  made,  for 
and  on  behalf  of  the  defendant  and  at  her  request,  and  under  her 
promise  to  repay  her  husband  thereafter."  There  was  a  finding 
that  the  total  amount  of  money  expended  by  the  defendant  for  per- 
manent improvements,  repairs,  taxes,  insurance,  etc.,  and  including, 
also,  repairs  and  expenses,  which  are  incidental  to  the  ordinary  care  of 
a  house,  from  the  beginning  of  the  erection  of  the  house  down  to 
the  date  of  the  trial,  was  the  sum  of  $4,734.26  and  that  the  fair 
rental  value  of  the  property  of  the  defendant  during  her  occupancy, 
for  a  period  of  about  twenty  years,  was  $250  per  year ;  amounting  in 
the  aggregate  to  $5,000. 

The  learned  trial  justice  conceded  the  existence  of  the  exception 
to  the  general  rule,  that  a  parol  gift  of  real  estate  is  void,  in  a  case 
where  the  donee  enters  into  possession  of  and  improves  the  prop- 
erty, upon  the  strength  of  the  promise  that  it  would  be  given  to  her ; 
but  he  did  not  think  that  the  present  case  fell  within  the  exception. 
He  was  influenced  in  that  view  by  a  consideration  of  the  nature 
of  the  acts  done  by  the  defendant,  in  reliance  upon  the  promise  of  Mr. 
Cornell.  Regarding  the  equitable  rule  to  be  founded  in  the  idea  of 
preventing  an  injustice  being  done  to  a  promisee,  if  the  promisor  be 
permitted  to  avail  himself  of  the  statute,  and  that  the  application  of 
the  rule  is  in  a  case  where  financial  injury  will  be  sustained;  he,  in 
the  first  place,  considered  that  as  the  defendant's  acts  were  only 
such  as  an  ordinary  householder  would  be  expected  to  make  and,  in 
the  second  place,  as  the  fair  rental  value  of  the  premises  during  the 
twenty  years  of  the  defendant's  occupation  was  worth  to  her,  al- 
together, a  sum  which  exceeded  the  aggregate  of  the  sum  found  to 
have  been  expended  by  her,  or  at  her  request,  during  that  time,  that 
if  the  defendant  was  compelled  to  surrender  possession  of  the  prem- 
ises, she  would  not,  in  fact,  be  a  loser  as  the  result  of  the  entire  trans- 
action with  Mr.  Cornell,  but  the  gainer.  Hence  he  concluded  that 
there  was  absent  here  that  element  of  injustice  to  the  donee;  which 
is  essential  to  exist,  in  order  to  entitle  him  to  an  enforcement  of  the 
doner's  promise. 

We  find  ourselves  unable  to  agree  with  the  trial  justice  in  his 
judgment  upon  this  question  and  we  prefer  the  view  taken  at  the 
General  Term;  thai  where  there  has  been  a  parol  promise  to  convey, 


172  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    1 

a  taking  of  possession  under  such  promise  and  the  making  of  per- 
manent improvements  upon  the  property  upon  the  faith  thereof, 
the  mere  value  of  the  occupation  during  the  time  is  not  to  be  set  off 
against  the  expenditures  made.  I  think  it  would  not  be  within  the 
spirit  of  the  rule  in  equity  that  its  application  should  be  made  to 
depend,  not  upon  the  fact  of  a  consideration  for  the  promise  being 
shown  to  have  existed  and  to  have  been  performed,  but  upon  the 
question  whether,  when  specific  performance  by  the  donor  is  claimed, 
the  use  has  not  compensated  the  donee  and  relieved  the  donor's  ob- 
ligation.    .     .     . 

In  such  a  case  as  this,  to  constitute  a  good  consideration  in  equity, 
it  is,  of  course,  essential  that  it  be  substantial;  in  the  sense  that  the 
promise  shall  rest  upon  a  performance  by  the  promisee,  which  evi- 
dences acceptance  of  and  reliance  upon  the  promise  and  consists  in 
expending  moneys   in   permanent   improvements  upon   the   land.      In 
this  case  it  may  well  have  been,   as   found,  that   some   of   the   ex- 
penditures made  by  the  defendant  upon  the  property  were  such  as 
a  householder  would  ordinarily  make,  or  were  trivial  in  their  nature; 
but  they  do  not  influence  the  character  of  the  others.     We  have  the 
fact  that  the  house  was  contracted   for  upon  the  promise  of    Mr. 
Cornell;  that  its  cost  exceeded  the  sum,  which  he  agreed  to  be  re- 
sponsible for,  by  $1,200,  and  that  there  were  the  other  improvements 
of  a  permanent  character,  to  which  I  have  adverted  as  being  found. 
There  was,  in  fact,  such  a  consideration  for  the  promise  of  Mr.  Cornell 
as  to  have  made  it  obligatory  upon  him  to  perform  it,  in  order  that 
the  defendant   should  not  be  defrauded  and  injured.      It   would  be 
very  inequitable  to  deprive  the  agreement  of  its  obligatory  character, 
merely  because,   during  the  time   of   the   occupation   of   the   defend- 
ant under  the  parol  promise,  the   fair  rental  value  of   the  premises 
would  amount,  in  the  aggregate,  to  a  svmi  in  excess  of  the  amount 
altogether  expended.     If  there  was  the  promise  to  give  the  property, 
accompanied  by  the  delivery  of  possession  to  the  defendant  and  ex- 
penditures in  permanent   improvements   made,   in   reliance   upon   the 
promise,  injury  will  be  presumed  to  follow  by  a  failure  to  perform 
it.     In  enforcing  such  a  promise,  equity  aims  at  preventing  a  fraud 
upon  the  donee  and  regards  the  case  as  taken  out  of  the  operation 
of  the  statute  by  the  part  performance.     .     .     . 


Ch.    2)  DEFENSES.  173 


GIRARD  V.  LEHIGH  STONE  CO. 

(Illinois  Supreme  Court  1917,  280  111.  479,  484,  117  N.  E.  698.) 

Mr.  Justice  Duncan.  .  .  .  The  agreement  by  which  appellee 
claims  an  easement  across  appellants'  land  was  a  verbal  agreement. 
It  is  well  settled  that  an  easement  or  other  incorporeal  hereditament 
in  lands  cannot  be  created  by  parol  but  only  by  grant,  or  by  pre- 
scription, which  presumes  a  grant.  (Lake  Erie  and  Western  Rail- 
road Co.  V.  Whitham,  155  111.  514.)  At  law  a  parol  license  is  revocable 
though  a  consideration  has  been  paid  or  expenditures  have  been 
made  on  the  faith  of  the  agreement.  (St.  Louis  Nat.  Stock  Yards 
V.  Wiggins  Ferry  Co.  112  111.  384;  Tanner  v.  Volentine,  75  id.  624.) 
Courts  of  equity,  however,  will  interfere  to  restrain  the  exercise  of 
a  legal  right  to  revoke  a  license  on  the  ground  of  preventing  fraud 
and  will  construe  the  license  as  an  agreement  to  give  the  right.  (Jones 
on  Easements,  sec.  76;  Hunt  v.  Sain,  181  111.  372;  Kamphouse  v. 
Gaffner,  7Z  id.  453.)  Appellants  went  into  the  circuit  court  by  bill 
in  equity  to  enjoin  the  doing  of  the  very  thing  they  had  agreed  appellee 
should  do,  according  to  the  finding  of  the  circuit  court.  Appellee 
had  expended  large  sums  of  money  on  the  faith  of  their  agreement, 
and  it  would  amount  to  a  fraud  on  appellee  to  permit  appellants  to 
thus  undo  their  agreement.  They  are  asking  equity  but  at  the  same 
time  are  not  offering  to  do  anything  to  make  appellee  whole  on  its 
expenditures.     .     .     . 


JOHNSON  V.  HANSON. 

(Supreme  Court  of  Alabama,   1844,  6  Ala.   351.) 

Assumpsit  by  the  plaintiff,  against  the  defendant  in  error. 

The  two  first  counts  of  the  declaration,  set  out  a  sale  of  land  by  the 
plaintiff  to  the  defendant,  at  the  price  of  eight  hundred  dollars,  to  be 
paid,  one  half  on  the  first  of  January,  1839,  and  the  remainder  on  the 
1st  January,  1840 — that  the  defendant  went  into  peaceable  possession 
of  the  premises,  and  has  hitherto  retained  it,  and  that  the  defendant 


174  SPECIFIC   PERFOEMANCE   OF  CONTRACTS  (Part   1 

has  paid  three  hundred  dollars,  part  of  the  purchase  money — that  the 
plaintiff  is  able  and  willing,  and  ready  to  make  title  according  to  his 
contract,  upon  the  payment  by  the  defendant,  of  the  purchase  money, 
and  concludes  with  the  usual  super  se  assumpsit. 

The  defendant  demurred  to  these  counts  of  the  declaration,  and 
judgment  being  rendered  on  the  demurrer,  for  the  defendant,  and  the 
plaintiff  declining  to  plead  over,  judgment  was  rendered  against 
him.     .     .     . 

Ormond^  J.  It  is  not  in  general,  necessary  to  allege  in  a  declara- 
tion, a  written  promise,  where  the  necessity  for  the  promise  being 
in  writing,  is  created  by  statute,  as  it  is  matter  of  evidence  to  be  proved 
at  the  trial,  but  in  this  case,  it  is  expressly  alleged  that  the  contract 
for  the  sale  of  the  land,  which  was  the  consideration  of  the  promise 
laid  in  the  declaration,  was  merely  verbal,  and  the  precise  question 
is,  whether  an  action  can  be  maintained  at  law,  to  recover  the  pur- 
chase money  of  land,  there  being  no  note  or  memorandum  thereof 
in  writing,  because  the  vendee  retains  the  possession. 

A  court  of  chancery  acting  on  its  own  peculiar  rules,  will,  in  cer- 
tain cases,  for  the  prevention  of  fraud,  enforce  a  specific  perform- 
ance of  a  verbal  contract  for  the  sale  of  land ;  as  where  there  has 
been  a  part  performance  of  the  contract,  but  we  are  not  aware  that 
such  a  power  has  ever  been  acknowledged  to  reside  in  a  court  of  law. 
Doubtless  some  isolated  cases  may  be  found,  in  which  it  has  been 
held  that  the  equitable  circumstances  which  would  authorize  a  court 
of  chancery  to  grant  relief,  might  be  considered  in  a  court  of  law. 

Lord  Redesdale  remarks,  "Mr.  Justice  Buller  says,  in  one  or  two 
cases,  that  part  performance  will  take  a  case  out  of  the  statute,  as 
well  at  law  as  in  equity.  This  opinion  will  be  found  wrong;  and  I 
recollect  Mr.  Justice  Buller,  on  being  pressed  with  the  consequences 
of  that  opinion,  in  case  of  a  demurrer  to  evidence,  being  obliged  to 
abandon  the  position.  The  ground  on  which  a  court  of  equity  goes 
in  cases  of  part  performance,  is  that  sort  of  fraud  which  is  cognizable 
in  equity  only."     O'Herliky  v.  Hedges,  1  S.  &  L.  130.     .     .     . 

The  recent  decision  of  Cope  v.  Williams,  4  Ala.  364,  has  been 
pressed  on  the  court,  as  tending  to  a  contrary  conclusion.  In  that  case, 
the  vendee  in  possession,  brought  an  action  to  recover  back  the  pur- 
chase money.  This  court  held,  that  it  was  contrary  to  equity  and 
good  conscience,  to  permit  him  to  assert  the  invalidity  of  a  contract, 


Ch.    2)  DEFENSES.  175 

by  virtue  of  which  he  retained  the  possession  of  the  land;  the  vendor 
being  wilhng  to  execute  the  contract. 

The  ditTerence  between  that  case  and  the  present  is,  that  here  the 
vendee  repudiates  the  contract,  and  if  he  retains  the  possession  of 
the  land,  it  is  not  by  force  of  the  contract,  which  at  law  can  confer 
no  rights  on  either  party,  but  because  the  vendor  chooses  to  acquiesce 

in  it. 

Whatever  may  be  the  rights  of  these  parties  in  a  court  of  equity, 
it  is  certain  no  right  can  be  derived  by  either  in  a  court  of  law, 
from  a  contract  declared  void  by  statute. 

Let  the  judgment  be  afTfirmed. 


WOOD  V.  MIDGLEY. 

(In  Chancery,  1854,  De  G.,  M.  &  G.,  41.) 

This  was  an  appeal  'from  the  decision  of  Vice-Chancellor  Stuart 
overruling  the  demurrer  of  the  defendant  to  a  bill  for  specific  per- 
formance filed  by  vendors  of  leasehold  property.  The  ground  of  the 
demurrer  was  that  the  bill  alleged  no  sufficient  agreement  in  writing 
within  the  Statute  of  Frauds.     .     .     . 

Turner,  L.  J.  .  .  .  As  to  the  second  point,  it  is  said  that  a 
defense  founded  on  the  Statute  of  Frauds  cannot  be  taken  by  way 
of  demurrer,  because  the  statute  does  not  destroy  a  parol  contract, 
but  only  prevents  the  enforcement  of  a  contract  unless  it  is  evidenced 
by  an  agreement  signed  by  the  party  to  be  charged ;  and  a  distinction 
was  attempted  to  be  drawn  on  this  ground  between  the  Statute  of 
Frauds  and  the  Statute  of  Limitations.  But  I  cannot  see  any  dis- 
tinction between  them  for  this  purpose,  because  the  Statute  of  Lim- 
itations does  not  destroy  a  debt  any  more  than  the  Statute  of  Frauds 
destroys  a  contract.  On  the  same  principle  it  must  rest  on  the  plain- 
tiff to  allege  a  state  of  facts,  in  each  case,  taking  it  out  of  the  opera- 
tion of  the  statute.  Both  cases  depend  on  the  same  principle,  which 
is,  that  it  is  incumbent  on  the  plaintiflf  to  state  facts  entitling  him  to 
equitable  relief.  (See  1  Dan.  Ch.  Pr.  [4th  Am.  ed.]365.  In  Foster 
V.  Hodgson,  19  Ves.  180,  184,  Lord  Eldon  said,  "I  was  present,  and 
I  believe  counsel  in  the  cause  of  Beckford  v.  Close;  and  I  am  sure 


176  SPECIFIC   PERFORMANCE    OF  CONTKAOTS  (Part    1 

that  Lord  Kenyon,  upon  the  doctrine  he  then  held,  thought  that  ad- 
vantage might  he  taken  of  a  case  of  this  sort  by  demurrer;  asking, 
if  a  plaintiff  states  upon  his  bill  a  case,  on  which  the  defendant  may 
insist  that  the  remedy  shall  be  taken  away,  why  may  he  not  do  so 
by  demurrer?"  It  seems  to  me,  therefore,  that  a  defense  resting 
on  the  Statute  of  Frauds  may  be  made  by  demurrer. 

Upon  the  merits  the  argument  is  threefold.  First,  it  is  said  that 
the  defendant  has  so  acted  as  to  avoid  signing  the  agreement,  hold- 
ing the  other  party  bound  by  the  agreement,  and  Maxwell  v.  Mounta- 
cute,  Free,  in  Ch.  526,  is  referred  to  on  this  head.  But  the  principle 
of  that  and  similar  cases  is  fraud.  If  a  party  has  been  guilty  of 
fraud,  beyond  all  doubt  the  Court  will  not  let  him  take  advantage  of 
the  Statute  of  Frauds.  All  the  cases  referred  to,  including  Hammers- 
ley  V.  De  Bid,  12  CI.  &  Fin.  45,  Walker  v.  Walker,  2  Atk.  98  and 
Muckleston  v.  Brown,  6  Ves.  52,  rest  on  this  principle.  Is  there,  then, 
a  case  alleged  by  this  bill  of  this  nature,  that  the  defendant  did  by  his 
fraudulent  act  prevent  the  agreement  from  being  reduced  to  writing. 
I  think  that  there  is  no  allegation  on  the  bill  bringing  forward  a  case 
of  fraud.  The  case  alleged  is  simply  this,  that  there  was  an  agree- 
ment for  a  sale  by  the  plaintiffs  to  the  defendant  for  £1,000,  and  that 
defendant  said  that  he  would  not  sign  any  agreement.  The  law  has 
said  that  the  defendant  is  not  to  be  sued  unless  upon  an  agreement 
signed  by  him.  Is  it  a  fraud  on  that  law  for  him  to  say,  I  have 
agreed,  but  I  will  not  sign  an  agreement?     ,     .     . 


GREEN  v.  GREEN. 

(Kansas  Supreme  Court,  1886,  34  Kan.  740.) 

HoRTON,  C.  J.  Harriet  F.  Wilcox,  being  the  owner  of  certain  real 
estate,  and  about  to  be  married  to  Oliver  Green,  signed  and  executed 
deeds  of  all  of  her  real  estate  to  her  children  the  day  before  her  mar- 
riage. The  deeds  were  made  without  the  knowledge  or  consent  of 
her  intended  husband,  and  for  no  other  consideration  than  love  and 
affection.  The  grantees  of  Harriet  F.  Wilcox,  now  Harriet  F.  Green, 
executed  deeds  to  the  property  to  James  H.  Easterday,  who  at  the 
time  had  knowledge  of  all  the  circumstances  attending  the  execution 
of  the  deeds  to  them.     Oliver  Green,  the  husband,  attempts  to  set 


Cll.    2)  DEFENSES.  177 

aside  these  deeds,  alleging  that  the  same  are  fraudulent  as  to  him. 
The  defendant,  James  H.  Easterday,  demurred  to  the  petition  of 
plaintiff,  on  the  ground  that  it  did  not  state  facts  sufficient  to  constitute 
a  cause  of  action.     .     . 

For  the  purpose  of  this  case,  all  the  allegations  of  the  petition  must 
be  taken  as  true.  Therefore  we  must  assume  there  was  a  verbal 
ante-nuptial  contract  existing  between  Oliver  Green  and  Harriet  F. 
Wilcox  at  the  time  of  their  marriage ;  that  the  marriage  was  con- 
summated by  Green  on  account  of  his  reliance  upon  the  ante-nuptial 
contract;  and  that  Harriet  F.  Wilcox,  now  Green,  has  been  guilty 
of  misrepresentation,  deception  and  actual  fraud  toward  Oliver  Green 
before  and  after  her  marriage.  The  question  is,  whether,  under  all 
these  circumstances,  the  deeds  delivered  subsequent  to  the  marriage 
can  be  set  aside  as  fraudulent  to  the  husband.  We  decided  in  Hafer 
V.  Hafer,  33  Kans.  449,  that— 

"The  statutes  of  this  state  recognize  the  right  of  parties  contem- 
plating marriage  to  make  settlements  and  contracts  relating  to  and 
based  upon  the  consideration  of  marriage,  and  that  an  ante-nuptial 
contract  providing  a  different  rule  than  the  one  prescribed  by  law 
for  settling  their  property  rights,  entered  into  by  persons  competent 
to  contract,  and  which,  considering  the  circumstances  of  the  parties 
at  the  time  of  making  the  same,  is  reasonable  and  just  in  its  pro- 
visions, should  be  upheld  and  enforced." 

And  we  further  decided  that  "Marriage  is  a  good  and  sufficient 
consideration  to  sustain  an  ante-nuptial  contract."  Sec.  6,  of  chapter 
43,  Comp.  Laws  of  1879,  of  the  statute  for  the  prevention  of  frauds 
and  perjuries,  provides: 

"No  action  shall  be  brought  ...  to  charge  any  person  upon 
any  agreement  made  upon  consideration  of  marriage,  .  .  .  unless 
the  agreement  upon  which  such  action  shall  be  brought,  or  some 
memorandum  or  note  thereof  shall  be  in  writing  and  signed  by  the 
party  to  be  charged  therewith,  or  some  other  person  thereunto  by 
him  or  her  lawfully  authorized." 

But  for  this  statute,  we  suppose  it  would  be  conceded  that  the 
ante-nuptial  contract  might  be  enforced,  or  at  least  that  the  deeds 
of  Harriet  F.  Green,  late  Wilcox,  attempting  to  convey,  without  con- 
sideration, all  of  her  real  estate,  so  as  to  deprive  herself  of  the 
1  Kq.-ll 


178  SPECIFIC   PERFOEMANCE   OF  CONTRACTS  (Part    1 

power  of  carrying  out  her  promises  and  contract,  would  be  invalid  as 
a  fraud  upon  her  husband.     .     .     . 

In  Glass  v.  Hulbert,  102  Mass.  24,  it  was  said : 

"The  marriage,  although  not  regarded  as  a  part  performance  of 
the  agreement  for  marriage  settlements,  is  such  in.  irretrievable  change 
of  situation  that  if  procured  by  artifice  upon  the  faith  that  the  set- 
tlement had  been,  or  the  assurance  that  it  would  be  executed,  the 
other  parties  are  held  to  make  good  the  agreement  and  not  permitted 
to  defeat  it  by  pleading  the  statute." 

In  Petty  v.  Petty,  4  B.  Mon.  215,  the  wife,  in  her  petition  charged 
that  her  husband,  being  much  the  elder  and  in  good  circumstances,  as 
an  inducement  to  the  contract  of  marriage  and  as  a  means  of  pro- 
viding for  her  support  in  the  event  of  his  death,  before  their  mar- 
riage promised  her  that  if  she  would  marry  him  he  would  im- 
mediately after  the  marriage  make  a  deed  of  settlement,  etc.  A  few 
days  after  the  marriage,  her  husband  disclosed  to  her  for  the  first 
time  that  he  had  been  induced  by  certain  persons  to  make  over  his 
property  before  he  married.  The  court  said,  in  passing  upon  the 
case,  that  "the  wife  has  been  fraudulently  deprived  of  the  right  of 
dower  by  the  deeds  in  question;  to  that  extent  at  least  of  this  in- 
terest, if  no  further,  their  execution  was  a  fraud  upon  her  and  ought 
not  to  stand."     .     .     . 

Upon  the  well-established  doctrine  that  fraud  takes  any  case  out 
of  the  statute  of  frauds,  and  the  principle  declared  in  Busenbark  v. 
Busenbark,  we  conclude  that  the  deeds  in  controversy  are  in  fraud 
of  the  rights  of  the  plaintiff,  and  that  he  is  entitled  to  have  them  set 
aside.     .     .     . 


DUFFY  V.  KELLY. 

(New  Jersey  Court  of  Chancery,  1897,  55  N.  J.  Eq.  627,  37  Atl.  597.) 

The  suit  is  in  the  nature  of  one  for  specific  performance.  The 
complainant,  by  his  bill,  sets  out  that  he  is  the  owner  of  a  lot  of  land 
in  Hoboken,  known  as  No.  165  Newark  street,  and  that  on  the  2nd 
of  October,  1891,  he  demised  the  same  unto  one  Adolph  Horn,  for 
the  term  of  five  years  from  that  day,  and  the  lease  contained  a  clause 


Ch.    2)  DEFENSES.  179 

in  these  words:  "And  it  is  further  agreed  that  the  tenant  shall  have 
the  option  of  extending  this  lease  for  the  further  period  of  five  years 
for  the  same  rent,  unless  the  landlord  shall  pay  a  fair  price  for  the 
building  that  is  to  be  put  on  the  premises  by  the  tenant,  provided 
three  months'  notice  in  writing  is  giv.en  by  either  party  before  the 
expiration  of  this  lease."     ... 

Pitney,  V.  C.  .  .  .  The  clause  in  question  is,  in  effect,  a  con- 
tract on  the  part  of  the  lessee  to  convey  the  building  to  the  com- 
plainant, lessor,  at  his  option,  at  a  fair  price.  This  is  a  necessary  im- 
plication from  the  scope  and  purpose  of  the  contract.  If  the  build- 
ing was,  in  fact,  so  annexed  to  the  land  as  to  be  incapable  of  removal 
as  a  trade  fixture,  then  the  legal  title  was  in  the  lessor  and  no  actual 
conveyance  is  necessary.  If,  on  the  other  hand,  the  lessee  has  the  right 
to  remove  it,  a  formal  release  of  that  right  is  proper.  The  clause  was 
evidently  framed  upon  the  idea  that  it  was  not  removable,  and  the 
provision  for  compensation  was  manifestly  introduced  for  the  benefit 
of  the  lessee  by  way  of  protecting  him  against  the  loss  of  the  amount 
invested  in  the  building.  It  follows  that  the  suit  is,  in  effect,  one  for 
specific  performance. 

The  circumstance  that  the  interest  here  in  question  may  be  properly 
classed  as  a  chattel  interest  is  no  objection  to  the  jurisdiction  of  the 
court.  The  power  and  propriety  of  the  court,  in  proper  cases,  to  deal 
with  specific  performance  of  contracts  for  the  sale  of  chattels  is  es- 
tablished by  a  series  of  authorities  in  New  Jersey,  the  leader  being 
Cutting  V.  Dana,  10  C.  E.  Gr.  265,  followed  by  Rothholz  v.  Schwartz, 
1  Dick.  Ch.  Rep.  477,  and  by  the  later  case  of  Gannon  v.  Toole,  32 
Atl.  Rep.  702.  In  the  last  case,  the  interest  dealt  with  was  much  like 
that  now  before  the  court. 

But,  in  essence,  the  subject-matter  here  is  real  estate.  It  involves 
the  right  to  the  possession  of  the  land  itself,  as  well  as  of  the  building 
which  has  been  erected  upon  it. 

Then  I  am  unable  to  see  how  the  complainant  can  have  his  remedy 
at  law.  By  his  notice  given  to  Kelly,  he  bound  himself  to  purchase 
the  building  at  a  fair  price,  and  barred  himself  from  declaring  the 
term  ended  except  upon  terms  of  paying  for  the  building.  In  order 
to  maintain  an  action  at  law,  it  is  necessary  for  him  to  make  a  tender 
of  a  fair  price  in  advance  of  his  action.  And  there  are  two  difficulties 
in  the  way  of  that — first,  that  he  has  no  mode  of  ascertaining  in  ad- 


180  SPECIFIC   PERFORMANCE  OF  CONTRACTS  (Part    1 

vance  what  a  jury  will  consider  to  be  a  fair  price,  and  second,  he 
might  not  be  quite  safe  in  tendering  it  to  either  of  the  two— Kelly, 
the  assignee  of  the  lease,  or  to  the  Bavarian  Brewing  Company,  as 
mortgagee. 

The  real  position  of  the  complainant  is  that  of  a  person  holding  a 
contract  to  purchase  a  right  of  possession  of  land  upon  paying  a  fair 
price  for  a  building  situate  upon  it.  In  that  respect  the  case  is  the 
converse  of  Berry  v.  Van  Winkle,  1  Gr.  Ch.  269,  where  the  aid  of 
the  court  was  asked  by  the  lessee,  who  had  a  contract  from  the  lessor 
to  pay  him,  at  the  end  of  the  term,  the  value  of  improvements  to  be 
put  upon  the  premises. 

Viewed  in  the  light  of  a  suit  for  specific  performance,  the  power 
and  duty  of  the  court,  where,  as  here,  it  is  necessary,  in  order  to  do 
justice,  to  ascertain  the  fair  value  of  the  subject  of  the  sale,  must  be 
considered  as  settled  in  this  court.  The  subject  was  considered  by 
Chancellor  Green  in  Van  Doren  v.  Robinson,  1  C.  E.  Gr.  256  (at  p. 
260),  where  that  learned  judge  collected  the  authorities  and  stated  the 
result  thus:  "But  where  the  contract  is  that  the  land  shall  be  recon- 
veyed,  not  at  a  price  to  be  agreed  upon  by  the  parties,  but  at  a  fair 
price,  or  at  a  fair  valuation,  the  court  would  direct  the  valuation  to 
be  made  by  a  master,  and  will  enforce  the  execution  of  the  con- 
tract." 

It  is  manifest  that,  unless  the   court   will   undertake  to   ascertain 
the  fair  value  of  the  building,  the  complainant  will  be  in  great  danger 
of  losing  the  benefit  of  the  terms  of  his  contract,  and  that  consideration 
has  influenced  the  courts  in  the  direction  of  assuming  that  duty  when- 
ever practicable.     This  abundantly  appears  from  an  examination  of 
the  later  EngHsh  authorities.     Pom.   Spec.   Perf.   §   151;  Fry   Spec. 
Perf.   (3rd  Am.  ed.)    §  346;  Hopcraft  v.  Hickman,  2  Sim.  &  Stu. 
.130;  Gaskarth  v.  Lord  Lowther,  12  Ves.  107;  Jackson  v.  Jackson,  1 
Sim.  &  G.  184;  22  L.  J.  Ch.  (N.  S.)  873;  Milnes  v.  Gery,  14  Ves.  400. 
The  latter  was  an  action  for  specific  performance  of  a  contract  to 
sell  an  estate  at  a  price  to  be  fixed  by  two  indifferent  persons,  one  to 
be  named  by  one  party  and  the  other  by  the  other  party,  and  if  the 
persons  so  named  should  happen  to  disagree,  then  these  two  to  choose 
a  third  person,  whose  determination  should  be  final.     Two  persons 
were  chosen,  but  were  unable  to  agree,  and  were  unable  to  agree 
upon  a  third  person.    Complainant  filed  a  bill  for  specific  performance, 


Ch.    2)  DEFENSES.  181 

asking  the  court  to  appoint  a  proper  person  to  make  the  valuation,  or 
that  the  valuation  should  be  ascertained  in  such  other  manner  as  the 
court  should  direct.  Sir  William  Grant,  master  of  the  rolls,  held 
that  the  court  had  no  power  to  fix  the  price  in  any  other  manner 
except  in  that  mode  fixed  by  the  parties,  but  at  page  407  he  adds : 

"The  case  of  an  agreement  to  sell  at  a  fair  valuation  is  essentially 
different.  In  that  case  no  particular  means  of  ascertaining  the  value 
were  pointed  out.  There  is  nothing,  therefore,  precluding  the  court 
from  adopting  any  means  adapted  to  that  purpose." 

With  regard  to  the  value  of  the  building  here  in  question,  I  think 
a  fair  valuation  will  be  arrived  at  by  taking  the  actual  cost  of  the 
building  and  water  and  sewer  connection,  which  was  $611,  and  make 
a  moderate  allowance  for  five  years'  wear  and  tear.  This  I  fix  at  $61 
and  fix  the  valuation  at  $550. 

As  the  complainant  made  his  offer  too  small  and  the  defendant 
his  demand  too  large,  I  think  it  right  that  each  party  should  pay  his 
own  costs. 

The  decree  will  be  that,  upon  tender  of  that  sum,  the  defendant 
must  release  all  right,  title  and  interest  in  the  premises,  without 
prejudice  to  the  right  of  the  complainant  to  recover  for  use  and  oc- 
cupation. 


BODWELL  V.  BODWELL. 

(Supreme  Court  of  Vermont,   1894,  66  Vt.  101,  28  Atl.  870.) 

Ross,  C.  J.  This  is  a  bill  brought  by  the  guardians  of  the  minor 
children  of  E.  B.  Bodwell,  deceased,  praying  to  have  Ida  A.  Bodwell, 
the  widow  of  the  deceased,  compelled,  specifically,  to  perform  a 
postnuptial  agreement  entered  into  by  her,  while  covert,  with  the  de- 
ceased, in  regard  to  living  separate  and  apart  from  the  deceased, 
and  relinquishing  "all  right,  title,  and  interest  in  and  to  his  property 
and  estate."  The  orators,  as  the  representatives  of  the  minor  chil- 
dren, stand  upon  the  rights  of  E.  B.  Bodwell,  as  they  existed  at  the 
time  of  his  decease.  Without  attempting  to  determine  whether  the 
contract  is  such  that  equity  would  specifically  enforce  it  under  any 
circumstances,  or  whether  it  is  fair  and  just  in  its  provisions  for  the 


182  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    1 

defendant,  or  whether  its  proper  construction  would  debar  the  de- 
fendant of  homestead  and  dower,  and  other  provisions  of  the  stat- 
ute for  her'  benefit,  in  his  estate,  it  is  elementary  that  "he  who  seeks 
equity  must  do  equity,"  or  that  a  party  to  a  contract,  or  those  stand- 
ing on  his  rights,  to  entitle  himself  to  a  specific  performance  of  the 
provisions  of  the  contract  which  are  to  be  performed  for  his  bene- 
fit, must  affirmatively,  establish  that  he  has  faithfully  kept  and  per- 
formed, or  is  ready  and  willing  to  keep  and  perform,  all  the  pro- 
visions of  the  contract  resting  upon  him  to  perform,  for  the  benefit 
of  the  other  party.  The  deceased  had  not  kept  and  performed  one 
of  the  essential  provisions  of  the  contract  which  rested  upon  him  to 
perform.  By  the  contract,  the  defendant  Ida  A.  Bodwell  was  given 
the  care  and  custody  of  their  minor  son  Burleigh  W.,  so  long  as  she 
should  properly  provide  and  care  for  him.  The  master  has  found 
that  she  did  properly  provide  and  care  for  him,  and  that  the  deceased 
did  not  regard  this  provision  of  the  contract,  but,  very  soon  after  it 
was  entered  into,  against  her  wish,  stealthily  took  the  son  from  her, 
and  not  only  detained  him  from  her  so  long  as  he  lived,  but  in  the 
meantime  brought  a  bill  of  divorce  against  her,  and  therein  prayed 
to  be  given  the  custody  of  the  son.  He  put  her  to  the  trouble  and 
expense  of  defending  herself,  not  only  from  the  charges  in  the  libel, 
but  also  from  the  obtaining  a  decree  for  the  custody  of  the  son. 
Under  these  circumstances,  E.  B.  Bodwell,  at  the  time  of  his  decease, 
did  not  stand  in  such  relations  to  the  contract  that  he  could  call  upon 
a  court  of  equity  to  enforce  it  specifically  in  his  favor.  Neither  do  the 
orators,  who  stand  on  his  rights.  Decree  reversed,  and  cause  re- 
manded, with  a  mandate  to  the  court  of  chancery  to  dismiss  the  bill, 
with  costs  to  the  defendant  in  this  court. 


BUCKLAND  v.  HALL. 

(In   Chancery,    180.3,    8   Ves.   92.) 

In  May,  1798,  the  plaintifif  being  in  possession  as  assignee  of  a 
house  belonging  to  the  defendant,  in  Duke  Street,  Lincoln's-Inn-Fields, 
at  a  rent  of  £30  per  annum,  to  expire  at  Midsummer,  1799,  a  treaty 
was  entered  into  and  concluded  for  a  renewal;  and  a  minute  of  an 


Ch.    2)  DEFENSES.  183 

agreement  was  written  by  the  defendant  for  a  lease  at  the  rent  of  £35. 
The  defendant  to  make  certain  alterations:  the  plaintiff  to  do  all 
substantial  repairs  by  the  24th  of  June,  1801,  and  the  painting  etc.,  by 
the  24th  of  June,  1802;  then  to  have  a  lease  signed  for  seven,  four- 
teen, or  twenty  one  years,  at  his  option,  from  midsummer  1800.  .  . 
The  Lord  Chancellor  (Eldon).  In  a  case  of  this  kind  the  court 
must  take  care  that,  the  tenant  is  not  rashly  turned  out  of  possession. 
On  the  other  hand  it  is  too  hard  against  the  landlord,  to  introduce 
upon  the  record  an  averment,  that  the  tenant  has  some  way  or  other 
become  solvent.  With  respect  to  the  insolvency,  the  weight  of  that 
objection  is  more  or  less  in  different  cases.  There  is  a  distinction 
certainly  between  a  purchase  and  a  lease.  In  the  former  instance  the 
bill  for  specific  performance  tenders  payment  of  the  purchase-money ; 
the  latter  is  very  much  otherwise;  and  the  court  ought  not  to  forget 
the  habit  of  dealing  among  mankind  with  regard  to  the  relation  of 
landlord  and  tenant.  Every  man  taking  a  tenant  looks  to  the  prob- 
ability of  the  rent  being  paid;  and  that  attention  is  paid  to  that  cir- 
cumstance through  the  whole  currency  of  the  lease,  that  introduces  a 
provision  not  to  assign  or  underlet  without  license;  and  that  is  often 
thought  of  so  much  consequence,  that  special  care  is  taken  at  least 
as  to  the  end  of  the  lease,  that  there  shall  then  be  a  responsible  tenant ; 
though  it  may  not  have  been  thought  necessary  to  provide  for  that 
in  the  anterior  period.  A  difference  of  opinion  has,  I  know,  prevailed, 
whether  that  is  a  usual  covenant,  to  be  inserted  as  such,  or  not.  But 
recollecting,  that  the  lessee  remains  liable  to  the  determination  of 
the  term,  but  an  assignee  only  during  his  possession,  it  is  of  great 
importance  to  the  lessor  to  take  care  that  the  lessee  shall  be  a  man 
of  substance.  Therefore  insolvency  admitted,  and  not  cleared  away, 
is  a  weighty  objection  to  a  specific  performance  of  an  agreement  for 
a  lease:  the  party  here  seeking  an  execution  beyond  the  law.  In- 
solvency would  be  of  weight  with  a  jury.  Such  a  question  appears 
never  to  have  been  determined;  and  is  of  too  much  consequence  to 
be  decided  upon  motion.  I  shall  therefore  only  say,  that  at  the  hear- 
ing in  general  cases,  it  would  have  considerable  weight  witn  me,  in 
some  cases  more  than  in  others.  If  the  tenant  undertakes  for  nothing 
but  the  payment  of  rent,  it  must  be  appreciated  accordingly.  If  be- 
yond that  he  undertakes  for  considerable  expenditure  upon  the  prem- 
ises, before  he  is  to  be  placed  in  the  relation  of  lessee,  that  is  directly 


184  SPECISJC    PERFOEMANCE    OF  CONTEACTS  (Part    1 

connected  as  a  most  important  circumstance  with  the  fact  of  solvency 
or  insolvency.  Therefore,  where  very  considerable  repairs  are  to  be 
done  by  the  lessee,  his  solvency  is  to  be  looked  to  to  that  extent ;  for, 
unless  done,  before  the  bill  is  filed,  they  are  to  be  done  after  the  de- 
cree ;  not  immediately  upon  tender,  as  in  the  case  of  a  purchase ;  un- 
less the  bill  can  offer  the  amount  of  the  utmost  possible  repairs  to  be 
paid  into  court.     ,     .     , 


THOMPSON  V.  WINTER. 

(Minnesota  Supreme  Court,  1889,  43  Minn.  121,  43  N.  W.  796.) 

GiLifiLLAN,  C.  J.     This  is  an  action  to  compel  specific  performance 
of  a  contract  in  the  nature  of  one  to  convey  real  estate.     The  de- 
fendant*had  purchased  the  land  from  the  state,  paying  15  per  cent, 
of  the  purchase  price,  and  receiving  certificates  of  purchase.     Feb- 
ruary 1,  1886,  these  parties  entered  into  a  contract  in  writing,  where- 
by defendant  agreed  that,  upon  full  performance  on  the  part  of  the 
plaintiff,  he  would  transfer  by  deed  of  assignment  the  said  land  cer- 
tificates.    Plaintiff  was  to  pay  therefor  $590,  according  to  two  prom- 
issory notes,— one  for  $190,  due  October   1,   1886,  with  interest  at 
10  per  cent.,   and   one    for   $400,   due  two   years    from   February    1, 
1886,  with  interest  at  8  per  cent.,— and  pay  all  taxes  and  assessments, 
and   the   unpaid   purchase-money   to   the    state.      The    plaintiff    fully 
performed  this  contract  on  his  part.      In   March,    1886,   the  parties 
made  an  oral  agreement,  by   which   defendant   agreed  to  make  cer- 
tain improvements  for  the  plaintiff  on  the  land,  by  breaking,  erect- 
ing buildings,  and  digging  a  well,  for  which  plaintiff  agreed  to  pay 
him  the  cost  thereof,  with   interest;   such  payment  not  to   be  made 
before   the   expiration   of   five   years   from   the   time   of    making  the 
improvements.     Afterwards,  pursuant  to  such  agreement,  defendant 
made  such  improvements  to  the  amount  of  $500,  no  part  of  which 
has  been  paid.    The  plaintiff  was  insolvent.     On  these  facts  the  court 
below  denied  specific  performance. 

From  the  memorandum  filed  by  the  court  below  it  appears  that 
the  specific  performance  was  refused,  in  the  exercise  of  what  the 
court  deemed  as  discretionary  power,  the  reasons   for  so  exercising 


Cll    2)  DEFENSES.  185 

that   power   being   stated   that   plaintiff   has    become    insolvent;   that 
the  value  of  the  improvements  is  equal  to  the  purchase  price;  and 
that  plaintiff  can  be  compensated  in  damages.     The  mere   fact  that 
a  person  has   a   contract   for  the  conveyance  to   him   of   real   estate 
does  not  entitle  him.  as  of  right,  to  the  interposition  of  a  court  of 
equity  to  enforce  it.     The  matter  of  compelling  specific  performance 
is  one  of  sound  and  reasonable  discretion, — of  judicial,  not  arbitrary 
and  capricious,  discretion.     There  must  be  some  reason,  founded  in 
equity   and   good   conscience,    for   refusing  the   relief.      Such    reason 
has  been  generally  found,  by  the  court  refusing  it,  in  some  mistake  or 
fraud  or  unconscionableness  in  the  contract,  or  in  some  laches  on  the 
part   of   the  plaintiff  changing  the   circumstances   so   as   to   make   it 
inequitable  to  compel  a  conveyance,  or  where  the  claim  is  stale,  or 
there   is   reason  to   believe   it    was   abandoned.      But,    whatever   the 
reason  may  be,  it  must  have  some  reference  to,  some  connection  with, 
the  contract  itself,  or  the  duties  of  the  parties  in  relation  to  it.     We 
have  never   found  a  case  where  the  court   refused  the   relief  as  a 
means  of  enforcing  some  independent  claim  of  the  defendant  against 
the  plaintiff,  nor  because  the  defendant  had  some  independent  claim 
which  he  might  not  be  able  to  enforce  against  the  plaintiff.     If  such 
could  be  regarded  as  an  equitable  reason   for  denying  relief,   every 
action   of   the   kind   might   involve  the   investigation   of   all   unclosed 
transactions  between  the  parties,  whether  relating  to  the  contract  or 
subject-matter   of   the   action,   or   entirely   distinct    from   it.      In   this 
case  there  is  no  reason  to  suppose  the  contract  other  than  a   fair 
one.     The  plaintiff  has  been  prompt  in  performing  on  his  part,  and 
in  seeking  his   remedy.     The   defendant   has   a  claim   against   plain- 
tiff, entirely  independent  of  the  contract  to  convey,  which  claim,  by 
the  terms  of  the  agreement  under  which  it  arose,  was  not  to  become 
due  for  more  than  three  years  after  the  time  when  he  was  to  con- 
vey.    The  possibility  that  when  it  becomes  due  he  may  not  be  able 
to    enforce    it,    by    reason    that    plaintiff's    insolvency    may    continue, 
does  not  make  it  inequitable  to  enforce  this  contract  already  matured. 
That  a  purchaser  may  have  an  adequate  remedy  by  action  for  dam- 
ages, although  a  reason  for  not  holding  what  he  has  done  to  be  part- 
performance  to  take  the  case  out  of  the  operation  of  the  statute  of 
frauds,   is  of   itself    no   reason    for   withholding  the   proper   remedy, 
where   the   contract    is   valid   under   the    statute.      The    order    is    re- 


186  SPECIFIC   PERFOEMANCE   OF  CONTRACTS  (Part    1 

versed,  and  the  court  below  will  enter  judgment  on  the  findings  of 
fact  in  favor  of  plaintiff  for  the  relief  demanded  in  the  complaint. 


PYATT  V.   LYONS 

(New  Jersey   Court  of  Chancery,  1893,  51  N.  J.   Eq.   308,  27  Atl.   934.) 

AbbSTT,  J.  The  bill  in  this  case  was  filed  for  specific  perform- 
ance of  a  contract  for  the  sale  of  lands.     .     .     . 

In  this  case,  if  the  contract  is  to  be  enforced,  the  complainant  was 
entitled,  in  equity,  to  a  conveyance  of  a  lot  on  the  corner  of  Nassau 
and  Witherspoon  streets,  in  Princeton,  twenty-two  feet  six  inches 
wide  and  one  hundred  and  twenty-nine  feet  deep,  and  he  was  not 
entitled,  in  equity,  to  the  "narrow  strip"  of  three  feet  eleven  inches, 
which  was  part  of  Witherspoon  street. 

The  learned  vice-chancellor  reached  this  conclusion,  and  determined 
correctly  upon  the  evidence  in  this  case,  that  this  complainant  never 
had  any  right,  in  equity,  to  have  a  conveyance  of  a  lot  of  more  than 
the  twenty-two  feet  six  inches  in  width.  The  defendants  offered  to 
convey  such  a  lot,  and  twice,  once  in  May  and  again  in  September, 
1892,  tendered  the  deed  of  March  28th,  1892,  containing  a  proper 
description  of  a  lot  twenty-two  feet  six  inches  wide  by  one  hundred 
and  twenty-nine  feet  deep,  on  the  corner  of  Nassau  and  Witherspoon 
streets.  The  complainant  refused  to  take  any  deed  unless  it  gave  him 
a  lot  twenty-six  feet  five  inches  in  width,  and  refused  to  pay  the 
balance  of  the  purchase  money  unless  he  got  a  good  title  to  such  a 
lot  as  would  include  the  "narrow  strip"  of  land  in  Witherspoon 
street. 

The  relief  invoked  is  not  a  matter  ex  debito  jusitiae;  the  bill  for 
specific  performance  is  addressed  to  the  extraordinary  jurisdiction 
of  a  court  of  equity  to  be  exercised  according  to  its  discretion,  and 
he  who  seeks  performance  of  a  contract  for  the  conveyance  of  land 
must  show  himself  ready,  desirous,  prompt  and  eager  to  perform  the 
contract  on  his  part.  Meidling  v.  Trefz,  3  Dick.  Ch.  Rep.  644;  Page 
V.  Martin,  1  Dick.  Ch.  Rep.  589;  Blake  v.  Flatley,  17  Stew.  Eq.  231. 

The  complainant  has  not  presented  a  case  which  brings  him  within 
the  above  rules,  and  no  case  has  been  shown  where  a  court  of  equity 


Ch   2)  DEFENSES.  187 

decreed  specific  performance  after  such  a  refusal  as  complainant  ad- 
mits in  this  case.  He  refused  to  perform  the  contract  on  his  part, 
unless  the  defendants  would  do  what  in  equity  they  were  not  bound  to 
do. 

The  complainant  cannot,  after  such  a  refusal,  and  after  the  de- 
fendants have  sold  the  premises  to  another,  seek  in  a  court  of  equity 
the  relief  prayed  for  in  this  suit.  He  must  be  left  to  his  remedy  at 
law.     ,     .     . 


BISHOP  V.  NEWTON. 

(Illinois   Supreme   Court,   1858,   20   111.    175.) 

WaIvKER,  J.  .  .  .  Then  has  complainant  a  right  to  insist  upon 
a  specific  performance  of  the  agreement?  This  breach  of  equity 
jurisdiction  is  regulated,  to  a  considerable  extent,  by  a  sound  legal 
discretion.  The  rule  governing  courts  was  stated  by  Chief  Justice 
Marshall  to  be,  that  when  a  bill  is  exhibited  by  a  party  who  is  him- 
self in  fault,  the  court  will  consider  all  the  circumstances  of  the 
case,  and  decree  according  to  those  circumstances ;  and  that  a  con- 
sideration always  entitled  to  great  weight  is,  that  the  contract,  though 
not  fully  executed,  has  been  in  part  performed.  6  Wheat.,  528.  And, 
in  a  subsequent  case,  the  same  court  lay  down  the  rule  that  time  may 
be  of  the  essence  of  the  contract  for  the  sale  of  property.  It  may  be 
made  so  by  the  express  stipulation  of  the  parties,  or  it  may  arise  by 
implication,  from  the  very  nature  of  the  property,  or  the  avowed  ob- 
jects of  the  seller  or  the  purchaser.  And  even  when  time  is  not  thus 
either  expressly  or  impliedly  of  the  essence  of  the  contract,  if  the 
party  seeking  a  specific  performance  has  been  guilty  of  gross  laches, 
or  has  been  exceedingly  negligent  in  performing  the  contract  on 
his  part,  or  if  there  has  been,  in  the  intermediate  period,  any  material 
changes  of  circumstances  affecting  the  rights,  interests  or  obligations 
of  the  parties;  in  all  such  cases,  a  court  of  equity  will  refuse  to 
decree  a  specific  performance,  upon  the  plain  ground  that  it  would 
be  inequitable  and  unjust.  But,  except  under  circumstances  of  this 
nature,  time  is  not  treated  by  courts  of  equity  as  of  the  essence  of 
the  contract,  and  relief  will  be  decreed  to  the  party  who  seeks  it, 
if  he  has  not  been  grossly  negligent,  and  comes  within  a  reasonable 


188  SPECIFIC    PERFOEMANCE    OF  CONTRACTS  (Part    1 

time,  although  he   has  not   strictly   complied   with   the   terms   of   the 
contract.     Taylor  v.  Longworth  et  al.,  14  Pet.,  172. 

The  complainant  has  brought  himself  clearly  within  the  principles 
of  these  rules.  He,  in  part  performance  of  the  contract,  paid,  on 
the  purchase,  one  thousand  dollars.  It  is  true,  he  did  not  pay  or 
offer  to  pay  the  next  installment  on  the  day,  but  he  did  ofifer  to  pay 
twenty  days  afterwards.  While  this  is  not  a  strict  compliance,  it 
is  not  gross  laches  or  unreasonable  delay,  when  it  is  remembered  that 
Newton  was  himself  in  default,  and  not  in  a  position  to  require 
payment,  and  we  are,  therefore,  of  the  opinion  that  his  conduct  was 
such  as  entitles  him  to  the  relief  sought.     .     .     . 


POMEROY  V.  FULLERTON. 

(Supreme  Court  of  Missouri,  1895,  131  Mo.  581,  33  S.  W.   173.) 

Macparland,  J.  The  suit  is  in  equity,  to  enforce  the  specific 
performance  of  the  following  contract :     .     .     . 

Some  time  previous  to  this  transaction  defendant  had  purchased  a 
large  tract  of  land  in  the  suburbs  of  the  city  of  St.  Louis,  of  which 
that  in  question  is  a  part,  for  which  he  agreed  to  pay  the  sum  of 
$80,000.  A  part  of  the  purchase  price  was  about  maturing  and 
defendant  was  much  in  need  of  money  to  meet  these  obligations. 
The  land  in  question  was  at  the  time  worth  more  than  under  the 
contract  plaintiff  agreed  to  pay  for  it.  Defendant  agreed  verbally 
with  plaintiiT  to  take  $18.50  per  front  foot  if  paid  in  cash.  We  think 
there  can  be  no  doubt  that  Reveley  was  fully  advised  of  defendant's 
pressing  need  of  money.  M.  P.  Reveley  and  W.  F.  Brink  were  real 
estate  agents  occupying  the  same  office  in  St.  Louis.  Brink  wished 
to  purchase  this  property,  having  in  view  its  immediate  sale  to  a 
third  party.  He  believed  he  could  sell  to  this  party  for  cash.  With 
these  objects  in  view,  and  influenced  by  these  considerations,  the 
contract  was  made,  and  the  copy  of  the  deed  explanatory  thereof 
was  furnished.  Brink  was  the  real  purchaser,  though  the  contract 
was  made  in  the  name  of  Reveley.     .     .     . 

At  the  time  the  contract  was  made  the  real  estate  market  in  St. 
Louis  was  much  depressed  and  so  continued  until  about  1888.  From 
that  time  on  the  appreciation  in  value  was  very  marked,  and  at  the 


Ch    2)  DEFENSES.  189 

trial  of  this  case  the  land  in  question  was  worth  four  times  what  it 
was  in  1883.  Streets  had  been  put  through  the  property.  These 
streets  had  been  paved  with  asphaltum,  sidewalks  had  been  laid  and 
sewers  constructed.  Defendant  testified,  and  in  that  he  was  not 
contradicted,  that  he  had  expended  at  least  $30,000  in  improvements. 
It  is  true  he  testified  that  the  street  improvements  were  not  com- 
menced until  about  1890.  It  does  not  appear  that  plaintitY  or  his 
assignor  paid  taxes  either  general  or  special  on  the  land,  expended 
any  money  in  its  improvement,  or  did  any  act  indicating  claim  or 
ownership  from  the  date  of  the  contract  to  the  commencement  of  this 
suit.  Under  these  circumstances,  is  plaintiff  entitled  to  the  equitable 
relief  demanded? 

Courts  of  equity  will  refuse  to  decree  specific  performance  of  a 
contract  when  to  do  so  would  be  plainly  inequitable  and  unjust.  In 
the  early  case  of  Taylor  v.  Longworth,  14  Pet.  172,  loc.  cit.  174,  it 
was  said  by  Mr.  Justice  Story:  "In  the  first  place,  there  is  no  doubt 
that  time  may  be  of  the  essence  of  a  contract  for  the  sale  of  property. 
It  may  be  made  so  by  the  express  stipulations  of  the  parties,  or  it 
may  arise  by  implication  from  the  very  nature  of  the  property,  or 
the  avowed  objects  of  the  seller  or  the  purchaser.  And  even  when 
time  is  not  thus  either  expressly  or  impliedly  of  the  essence  of  the 
contract,  if  the  party  seeking  a  specific  performance  has  been  guilty 
of  gross  laches,  or  has  been  inexcusably  negligent  in  performing  the 
contract  on  his  part,  or  if  there  has,  in  the  intermediate  period  been 
a  material  change  of  circumstances  afifecting  the  rights,  interests, 
or  obligations  of  the  parties,  in  all  such  cases  courts  of  equity  will 
refuse  to  decree  any  specific  performance,  upon  the  plain  ground  that 
it  would  be  inequitable  and  unjust."  In  the  case  of  Holgate  v. 
Eaton,  116  U.  S.  40,  Mr.  Justice  Miller  declares  this  language  to 
have  become  a  legal  maxim  in  this  class  of  cases.     .     .     . 

We  are  well  satisfied  from  the  terms  of  the  contract,  which  re- 
quired performance  by  the  vendee  "not  later  than  May  25,"  and  the 
circumstances  under  which  it  was  made,  that  the  vendor  intended  to 
make  the  time  of  performance  an  essential  part  of  the  contract.  We 
are  furthermore  satisfied  that  the  vendee  expected  to  be  prepared 
to  carry  out  the  contract  by  the  time  specified  and  would  have  been 
perfectly  willing  to  make  time  an  essence  of  the  contract.  He  must 
have  known  defendant's  urgent  need  for  money,  from  the  1(jw  price 
at  which  he  offered  the  land  and  the  large  discount  he  was  willing  to 


;190  SPECIFIC  PEEFORMANCE   OF  CONTRACTS  (Part    1 

make  for  cash.  A  consideration  of  all  these  facts  and  circumstances 
convinces  us  that  the  parties  intended  to  make  the  time  of  perform- 
ance not  only  a  material,  but  an  essential  part  of  the  contract. 

The  delay  in  applying  for  relief  may  not  be,  of  itself,  sufficient 
grounds  upon  which  to  deny  granting  it,  but  that,  coupled  with  all 
circumstances,  makes  a  case  in  which  it  would  be  most  inequitable 
and  unjust  to  require  defendant  to  specifically  perform  the  contract. 
The  relief  was,  therefore,  properly  denied  by  the  learned  circuit 
judge,  and  the  judgment  is  affirmed.     .     .     . 


WELLS  V.  SMITH. 

(New  York  Court  of  Chancery,  1837,  7  Paige  22.) 

The  Chancellor.  This  bill  is  filed  to  compel,  a  specific  per- 
formance of  a  contract  for  the  sale  of  a  lot  of  land  in  New  York, 
the  complainant  having  failed  to  perform  the  contract  on  his  part 
within  the  time  stipulated.  And  the  only  questions  are,  whether  upon 
an  executory  contract  of  sale,  parties  may  make  time  an  essential 
part  of  the  contract,  so  that  this  court  will  not  relieve  against  a  non- 
compliance at  the  day;  and  whether  it  was  the  intention  of  the  parties 
in  this  case  to  make  the  payment  of  the  money  on  or  before  the  time 
stipulated  an  essential  part  of  the  agreement. 

There  cannot  be  a  doubt  that  it  was  the  intention  of  the  parties 
in  this  case  to  make  the  time  specified  an  essential  part  of  the  con- 
tract. It  is  hardly  possible  to  make  language  more  explicit.  The 
contract  was,  that  if  the  complainant  failed  or  neglected  to  perform 
all  or  any  one  of  the  covenants  therein  contained  on  his  part,  at  the 
time  or  times  therein  before  limited,  then  and  in  such  case  all  the 
covenants  and  agreements  on  the  part  of  the  defendant  should  cease 
and  be  absolutely  void;  and  all  the  complainant's  right  or  interest  in 
the  premises  either  in  law  or  equity  should  cease,  etc.  And  one  of 
the  covenants  on  the  part  of  the  complainant  was,  to  build  and  en- 
close a  house  upon  the  front  of  the  lot  on  or  before  the  first  of  August, 
or  in  lieu  thereof,  that  he  should  on  that  day  pay  to  the  defendant 
one  thousand  dollars  as  the  first  payment  towards  the  purchase  money. 
The  complainant  had  his  election  to  do  one  or  the  other,  as  was  most 


Ch    2)  DEFENSES.  191 

convenient  for  him ;  but  if  he  did  neither,  it  was  unquestionably  the 
intention  of  both  parties  that  the  defendant  should  be  no  longer 
bound  by  the  contract.  And  although  Mrs.  Smith  afterwards  con- 
sented to  modify  the  contract,  so  far  as  to  permit  him  to  pay  the 
whole  instead  of  a  part  only  of  the  purchase  money  on  the  day — he 
not  having  attempted  to  build  the  house — she  gave  him  fair  notice 
that  if  he  suffered  the  day  to  pass,  without  paying  the  amount  stip- 
ulated in  the  contract,  she  should  avail  herself  of  the  condition  ex- 
pressed in  the  agreement  and  refuse  him  the  deed.     .     .     . 

As  to  the  power  of  the  vendor,  or  of  the  purchaser,  to  make  the 
performance  of  a  condition  precedent  essential  to  the  vesting  of  a 
legal  or  equitable  right  in  the  adverse  party  to  a  specific  performance, 
I  have  no  doubt ;  though  this  court  may  perhaps  relieve  against  a 
forfeiture  where  it  would  be  unconscientious  to  insist  upon  a  strict 
and  literal  compliance.  Thus  if  a  vendor,  after  he  has  received  the 
greater  portion  of  the  purchase  money,  should  attempt  to  enforce  a 
forfeiture  of  the  money  paid,  under  a  stipulation  that  he  might  keep 
the  whole  amount  thus  received  and  the  premises  also  if  the  last  pay- 
ment was  not  made  at  the  day,  I  am  not  prepared  to  say  that  this 
court  would  not  interfere  to  compel  him  either  to  accept  the  last 
payment  and  convey  the  premises,  or  to  restore  the  purchase  money 
already  paid ;  after  deducting  a  reasonable  allowance  for  the  use  of 
the  premises  in  the  mean  time. 

In  this  case,  however,  the  interest  of  the  money  till  the  first  of 
August,  and  the  shop  which  the  complainant  agreed  to  leave  on  the 
premises  if  he  did  not  perform  his  part  of  the  contract  at  the  day, 
are  not  probably  more  than  the  value  of  the  use  of  the  premises  in 
the  meantime  and  of  the  chance  of  gain  to  the  purchaser  by  the  prob- 
able increase  in  the  value  of  the  property.  They  may,  therefore, 
very  properly  be  considered  as  reasonable  stipulated  damages  for 
the  non-performance  of  the  contract  by  the  vendee  at  the  lime  fixed 
upon  by  the  parties,  and  are  not  properly  a  forfeiture.  Although 
in  theory  the  interest  is  supposed  to  be  a  fair  equivalent  for  tiie  non- 
payment of  money  at  the  time  agreed  upon,  we  all  know  that  in  point  of 
fact,  the  person  to  whom  it  is  due  frequently  sustains  great  losses  in 
consequence  of  the  disappointment,  which  the  legal  rate  of  interest  can- 
not compensate.  On  the  other  hand,  it  frc'<iuently  happens  that  the 
perfecting  of  the  title  and  the  delivery  of  the  possession  of  the 
premises  at  the  time  contemplated  by  the  purchaser  is  of  essential 


192  SPECIFIC   PEEFOEMANCE    OF  CONTEACTS  (Part    1 

benefit,  to  him ;  which  cannot  be  compensated  by  damages  which  are 
ascertainable  by  the  ordinary  rules  of  computing  damages.  It  would 
therefore  not  only  be  unreasonable,  but  entirely  unjust,  for  any  court 
to  hold  that  parties,  in  making  executory  contracts  for  the  sale  or 
purchase  of  real  estate,  should  not  be  permitted  to  make  the  time  of 
performance  an  essential  and  binding  part  of  the  contract  in  equity 
as  well  as  at  law,  where,  as  in  this  case,  the  other  party  was  fully 
apprised  of  the  intention  to  insist  upon  a  strict  performance  at  the 
day.     .     .     . 


HOYT  V.  TUXBURY.     ■ 

(Supreme  Court  of  Illinois,  1873,  70  111.  331.) 

ScHOLF'iELD,  J.  .  .  .  The  rule,  time  and  again  announced  by 
this  court,  is,  that  a  party  can  not  call,  as  a  matter  of  right,  upon 
a  court  of  equity  to  specifically  enforce  the  performance  of  a  con- 
tract; that  its  exercise  rests  in  the  sound  discretion  of  the  court,  in 
view  of  the  terms  of  the  contract  of  the  parties,  and  surrounding 
circumstances.  A  party  demanding  its  exercise,  is  bound  to  show 
he  himself  has  always  been  ready,  willing  and  eager  to  perform  on 
his  part.     .     .     . 

In  McKay  v.  Carrington,  1  McLean,  59,  this  principle  is  applied 
to  a  contract  for  the  sale  of  real  estate,  the  court  saying :  "When  the 
property  has  not  materially  changed  in  value,  and  the  circumstances 
of  the  parties  in  relation  to  it  remain  substantially  as  they  were  when 
the  contract  was  made,  or  was  made  to  have  been  performed,  time 
is  seldom  considered  material.  But  where  a  specific  execution  of 
the  contract  will  give  the  purchaser  property  greatly  deteriorated  from 
the  value  it  bore  when  he  should  have  received  it,  it  would  be  unjust 
to  compel  him  to  receive  it.  Chancery  will  never  interpose  its  powers, 
under  such  circumstances,  to  carry  the  contract  into  eiTect." 

And  this  must  obviously  apply  with  equal  force  in  cases,  like  the 
present,  where  the  purchaser  is  seeking  specific  performance  and 
the  property  has,  pending  the  delay  of  the  purchaser  to  determine 
whether  he  will  take  the  title  the  vendor  has,  greatly  increased  in 
value.  See,  also,  Schmidt  v.  Livingston,  3  Edwards  (Chy),  213; 
Williams'  Admrs.  v.  Stark,  2  B.  Monroe,  196. 


Ch   2)  DEFENSES.  193 

It  appears,  from  the  evidence,  that  appellant  was  a  real  estate 
broker,  and  the  contract  made  by  him  for  the  purchase  of  the  prop- 
erty, in  controversy,  was  for  the  purpose  of  speculation.  The  location 
of  the  property  was  deemed  favorable  for  that  purpose.  Its  prox- 
imity to  a  contemplated  public  park,  and  the  prospective  improve- 
ments incident  thereto,  afforded  reasonable  ground  for  the  expecta- 
tion that  it  would  materially  and  speedily  appreciate  in  value.  This, 
however,  necessarily  depended  on  a  number  of  contingencies,  and 
time  alone  could  fully  determine  to  what  extent  the  expectations 
would  be  realized.  There  was  a  reasonable  prospect  of  gain  for  the 
purchase,  at  the  contract  price,  but,  at  the  same  time,  a  possibility  of 
loss. 

By  the  terms  of  the  contract,  if  the  title  was  found  to  be  not  good, 
appellant  was  to  have  back  the  $1000  paid  at  the  execution  of  the 
contract.  If  he  failed  to  comply  with  the  contract,  he  was  to  forfeit 
the  $1000  as  liquidated  damages.  Appellant  might  elect  to  take  the 
title,  notwithstanding  his  objections  to  it,  but  Tuxbury  could  not  com- 
pel him  to  do  so.     .     .     . 

It  is  clear,  upon  the  principles  before  quoted,  that  appellant  was  only 
entitled  to  a  reasonable  time  in  which  to  determine  whether  he  would 
take  the  title  Tuxbury  had,  or  reject  it,  and  that  he  could  not  keep  the 
trade  suspended  indefinitely,  so  as  to  avail  of  a  rise  in  the  value  of 
the  property,  or  relieve  himself  from  loss  by  rescinding  the  con- 
tract, in  the  event  of  its  depreciation  and  the  court  below  was  justi- 
fied in  finding  that  Tuxbury  was  authorized  to  treat  the  contract  as 
abandoned  by  appellant. 


WEBSTER  V.  FRENCH. 

(Supreme  Court  of  Illinois,   1849,   11   111.   254.) 

This  was  a  bill  filed  in  the  Sangamon  Circuit  Court,  to  enforce  a 
conveyance  of  the  Quincy  House  to  the  complainants.     .     .     . 

CaTON,  J.     .     .     .     There  is  but  one  other  question  made  in  this 

case,   which  we  think  it  necessary  to  examine.     It   is  objected  that 

the  complainants  have  not  actually  brought  their  tender  into   Court 

with  their  bill,  and  deposited  it  with  the  clerk.    In  this  Court,  this  is  in 

1  Eq.— 13 


194  SPECIFIC  .PEEFORMAlSrCE  OF  CONTRACTS  (Part    1 

fact  a  new  question,  as  now  presented,  although  in  three  different 
cases,  in  all  of  which  the  opinions  were  prepared  by  myself,  it  has  been 
stated,  that  the  tender  should  be  kept  good  by  bringing  the  money 
into  Court ;  yet  in  none  of  these  was  the  question  distinctly  pre- 
sented, or  necessary  to  a  decision,  for  in  none  of  them  had  a  sufficient 
tender  ever  been  made,  and,  consequently,  the  question  did  not  under- 
go that  careful  consideration  which  would  have  been  given  it,  had  the 
case  turned  upon  that  point.     ... 

The  result  of  my  examination  of  this  subject  clearly  shows  that  the 
Court  of  Chancery  is  not  bound  down  by  any  fixed  rule  on  this  subject, 
by  which  it  will  allow  the  substantial  ends  of  justice  to  be  perverted 
or  defeated  by  the  omission  of  an  unimportant  or  useless  act,  which 
nothing  but  the  merest  technicality  could  require.  The  money  may, 
at  any  time,  be  ordered  to  be  brought  into  court,  whenever  the  rights  of 
the  opposite  party  may  require  it ;  but  while  he  is  insisting  that  the 
money  is  not  his,  and  that  he  is  not  bound  to  accept  it,  it  would  seem 
to  be  a  matter  of  no  great  consequence  to  him  whether  it  is  in  the  cus- 
tody of  the  Court  or  not.  The  Court  possesses  a  liberal  and  enlarged 
discretion  on  this  subject,  by  the  proper  exercise  of  which  the  rights  of 
all  parties  may  be  protected.  In  all  the  precedents  which  I  have  exam- 
ined in  cases  like  this,  I  do  not  find  a  single  instance  in  which  the  com- 
plainant, by  his  bill,  professes  to  bring  the  consideration  money  into 
Court,  although  a  tender  is  most  generally  averred.  Even  where  a  bill 
is  filed  by  a  mortgagor  to  redeem,  he  does  not  profess  in  his  bill  to 
bring  the  money  into  Court,  nor  is  it  usual  for  him  to  do  so,  but  he 
only  makes  a  present  offer  to  pay  the  money.  He  might,  probably, 
by  tendering  the  amount  due,  and  by  bringing  it  into  Court,  stop  the 
interest,  but  if  he  does  not  choose  to  do  this,  I  do  not  think  a  precedent 
can  be  found  for  dismissing  a  bill  for  that  reason.  I  can  perceive  no 
stronger  reason  for  requiring  the  money  to  be  brought  into  Court,  in 
the  first  instance  in  this  case,  than  in  the  case  of  a  mortgage.  In  the 
case  of  a  bill  of  interpleader,  where  the  practice  on  this  subject  is 
much  more  strict  than  in  any  other  case  in  chancery,  the  rule  is  not 
inflexible  that  the  fund  shall  be  deposited  in  Court,  and  I  have  been 
unable  to  find  a  single  instance,  where  even  such  a  bill  has  been  dis- 
missed for  the  sole  reason  that  the  fund  was  not  deposited  at  the  time 
the  bill  was  filed.  Indeed,  it'  has  been  expressly  decided  that  such  a 
bill  is  not  demurrable,  because  the  plaintiff,  does  not  offer  to  bring  the 


Ch   2)  DEFENSES.  195 

money  into  court.    Meux  v.  Bell,  6  Sim.,  175 ;  1  Smith's  Ch.  Pr.,  2  Am. 
Ed.  476;  3  Daniel's  Ch.  Pr.,  1  Am.  Ed.  1760. 

Without  pursuing  this  subject  further,  I  am  satisfied  that  the  ex- 
pressions used  by  me  in  the  cases  referred  to,  were  not  warranted  by 
the  law,  or  at  least  that  they  should  not  be  understood  as  laying  down 
an  inflexible  rule,  prescribing  an  indispensable  condition,  which  must 
be  complied  with  before  the  complainant  is  properly  in  Court,  or  even 
before  the  Court  will  proceed  to  determine  the  rights  of  the  parties. 
It  is  time  enough  for  the  party  to  bring  the  purchase  money  into  Court, 
when  he  is  called  upon  to  do  so.     .     .     . 


DAY  V.  COHN. 

(Supreme  Court  of  California,  1884,  65  Cal.  508,  4  Pac.  511.) 

McKee,  J.  .  .  .  The  action  was  to  enforce  the  specific  perform- 
ance of  a  parol  agreement  to  convey  the  legal  title  to  a  town  lot. 

The  record  of  the  case  shows  that  the  plaintiff  proved  the  agreement 
as  averred  in  his  complaint ;  that  under  the  agreement  he  entered  into 
possession  of  the  lot,  by  and  with  the  consent  of  his  vendor,  and  ex- 
pended several  hundred  dollars  in  building  upon  it  a  dwelling-house 
and  out-houses,  which  were  occupied  by  himself  and  his  tenants ;  and 
that,  during  his  occupancy,  he  made  occasional  payments  upon  the 
purchase  price  of  the  lot,  which  were  accepted  by  the  vendor  on  ac- 
count, and  the  balance  he  tendered  and  demanded  his  deed ;  and  he  still 
was  ready  and  willing  to  pay  what  was  due,  but  the  defendant,  to 
whom  the  lot  had  been  conveyed  by  the  vendor,  refused  to  accept  the 
money  or  to  execute  a  deed. 

Possession  of  a  lot  of  land  under  a  parol  contract  for  the  sale  there- 
of, the  expenditure  of  money  in  the  improvement  thereof,  and  partial 
payments  of  the  price  stipulated  to  be  paid  for  it,  constitute  part  per- 
formance of  the  contract  which  takes  it  out  of  the  statute  of  frauds 
(§  1972,  Code  Civ.  Proc),  and  entitles  the  vendee  to  specific  per- 
formance of  the  contract  itself,  unless  there  are  circumstances  in  the 
case  which  would  render  it  inequitable  for  a  court  of  equity  to  grant 
relief. 

There  is  nothing  in  the  circumstances  of  the  case  which  shows  laches 
on  the  part  of  the  plaintifif  in  the  performance  of  the  agreement.     No 


196  SPECIFIC   PERFORMANCE  OF  CONTRACTS  (Part    1 

definite  time  was  named  for  the  payment  of  the  price  to  be  paid.  By 
the  terms  of  the  agreement  the  money  was  to  be  paid  from  time  to  time 
"as  the  plaintiff  earned  the  same."  Time,  therefore,  was  not  of  the 
essence  of  the  agreement,  nor  was  it  made  so  by  notice  or  demand  for 
the  payment  of  the  money  at  any  particular  time.  The  vendor  was 
content  to  let  it  remain  bearing  interest,  and  he  always  accepted 
any  payments  which  were  made  by  the  plaintiff  in  performance  of  the 
agreement.  The  last  of  such  payments  was  made  in  1881,  two  years 
before  the  commencement  of  the  action  in  hand.  There  was,  therefore, 
no  repudiation  or  abandonment  of  the  contract  by  the  plaintiff ;  and  as 
he  was  all  the  time,  until  the  conveyance  to  the  defendant,  in  the  actual 
possession  of  the  lot  under  the  contract,  his  equitable  right  to  compel 
performance  of  it  was  not  barred  by  the  Statute  of  Limitations.  (Love 
V.  Watkins,  40  Cal.  547;  Willis  v.  Wozencraft,  22  Cal.  608;  Millard  v. 
Hathaway,  27  Cal.  119.) 


WEBB  v.  HUGHES. 

(In  Equity,  1870,  L.  R.  10  Eq.  281.) 

Sir  R.  Malins,  V.  C.  .  .  .  This  bill  was  filed  for  the  specific 
performance  of  the  contract  for  sale  of  The  Cedars  on  the  26th  of 
May,  1869.  The  case  set  up  by  the  Defendant  is  that  time,  if  not  by 
the  terms  of  the  agreement,  at  all  events  by  the  circumstances  of  the 
case,  was  of  the  essence  of  the  contract.  One  stipulation  in  the  agree- 
ment was  that  the  Plaintiff  should  have  possession  of  the  pi'operty 
on  the  26th  of  February  if  his  purchase-money  was  then  paid. 

The  circumstances  were  these :  The  Defendant  came  of  age  in  the 
year  1868,  and  required  a  residence  immediately  for  himself  and  his 
mother.  It  is  said  that  the  Plaintiff  was  aware  of  that  fact,  and  the 
Defendant  says  he  informed  the  Plaintiff  that  if  he  could  not  obtain 
possession  of  the  property  by  the  time  stated  in  the  agreement,  it 
would  be  of  no  use  to  him. 

Now,  the  rules  of  this  Court  are  plain.  A  purchaser  may,  by  the 
terms  of  the  agreement,  make  time  the  essence  of  the  contract,  but  it 
requires  a  very  strict  stipulation  to  effect  that  object ;  or  he  may  make 
time  the  essence  of  the  cohtract,  by  a  notice  at  any  time  during  the 


C!h  2)  DEFENSES.  197 

progress  of  the  negotiations.  If,  therefore,  time  was  not  an  essential 
part  of  the  contract,  the  Defendant  might  have  made  it  so  by  giving 
the  Plaintiff  notice  to  that  effect.  In  my  opinion  the  agreement  in  this 
case  did  not  make  time  the  essence  of  the  contract,  because  the  very 
condition  shews  that  the  execution  of  the  contract  might  from  some 
causes  be  postponed,  and,  in  that  case,  interest  was  to  be  paid  upon  the 
purchase-money  until  the  completion  of  the  purchase ;  but  upon  pay- 
ment of  the  money,  the  purchaser  was  to  be  entitled  to  possession  of 
the  property.  It  was,  therefore,  evidently  contemplated  that  the  time 
might  extend  beyond  the  day  fixed  for  completion.  But  if  time  be 
made  the  essence  of  the  contract,  that  may  be  waived  by  the  conduct 
of  the  purchaser;  and  if  the  time  is  once  allowed  to  pass,  and  the 
parties  go  on  negotiating  for  completion  of  the  purchase,  then  time  is 
no  longer  of  the  essence  of  the  contract.  But,  on  the  other  hand, 
it  must  be  borne  in  mind  that  a  purchaser  is  not  bound  to  wait  an  in- 
definite time;  and  if  he  finds,  while  the  negotiations  are  going  on, 
that  a  long  time  will  elapse  before  the  contract  can  be  completed,  he 
may  in  a  reasonable  manner  give  notice  to  the  vendor,  and  fix  a  period 
at  which  the  business  is  to  be  terminated.  But,  having  once  gone  on 
negotiating  beyond  the  time  fixed,  he  is  bound  not  to  give  immediate 
notice  of  abandonment,  but  must  give  a  reasonable  notice  of  his  in- 
tention to  give  up  his  contract  if  title  is  not  shewn.  What,  then,  would 
have  been  a  reasonable  time?  What  was  the  Defendant's  position  on 
the  7th  of  April?  The  solicitors  had  been  negotiating  from  the  26th 
of  February  for  completion  of  the  contract,  and  on  the  7th  of  April 
the  purchaser  does  not  give  the  vendor  even  twenty- four  hours'  notice 
of  his  intention,  but  sends  a  notice  of  his  immediate  abandonment  of 
the  contract.  If,  instead  of  that,  he  had  given  notice  that  if  the  vendor 
did  not  perfect  his  title  within  a  reasonable  time,  then  he  would  aban- 
don his  purchase  and  would  require  a  return  of  his  deposit,  that  would 
have  been  sufficient ;  but  he  had  no  right,  under  the  circumstances,  to 
give  notice  of  immediate  abandonment.     .     .     . 

In  McMurfy  v.  Spicer  Law  Rep.  5  Eq.  527,  I  had  occasion  fully  to 
consider  the  question,  and  there  I  stated  (p.  543)  :  "The  purchaser  is 
bound  to  give  the  vendor  a  reasonable  time  for  completing  his  title. 
No  absolute  rule  can  be  laid  down  as  to  what  is  a  reasonable  time. 
That  must  depend  upon  a  variety  of  circumstances.  .  .  .  The 
notice  here  was  a  week,  which  I  think  was  too  short  a  time.    He  was 


198  SPECIFIC   PERFOEMANCE   OF  CONTRACTS  (Part    1 

bound  to  give  him  a  reasonable  time,  and  I  think  that  a  week,  or  even 
a  month,  was  too  short ;  and  the  notice  was  ineffectual  for  the  purpose 
of  rescinding  the  contract,  upon  the  ground  of  the  time  not  being  a 
reasonable  time."  On  this  rule,  therefore,  it  was  not  competent  for 
the  purchaser  to  give  notice  of  immediate  abandonment  of  his  con- 
tract.    .     ,     . 


MARSH  v.  BUCHAN. 

(New  Jersey  Court  of  Chancery,   1890,  46  N.  J.   Eq.   595,   22   Atl.   128.) 

On  appeal  from  a  decree  advised  by  John  R.  Emery,  one  of  the  ad- 
visory masters,  who  filed  the  following  conclusions : 

This  is  a  bill  by  a  purchaser  against  a  vendor,  for  the  specific  per- 
formance of  a  written  agreement  to  convey  lands.     .     .     . 

The  present  case  is  one  where  the  principal  applies  for  a  specific  per- 
formance of  the  contract  procured,  as  I  have  found,  by  his  agent's 
fraud. 

This  relief,  being  purely  equitable,  will  be  denied  where  the  situa- 
tion of  the  parties  requires  perfect  good  faith  and  openness  of  dealing 
in  making  the  contract,  and  these  have  not  been  observed. 

In  Hesse  v.  Briant,  6  De  G.,  M.  &  G.  623,  this  rule  was  laid  down 
as  applying  to  a  case  where  a  solicitor  was  acting  as  agent  for  both 
vendor  and  purchaser,  and  the  court  of  errors  and  appeals,  in  Young 
V.  Hughes,  5  Stew.  Eq.  372,  385,  approved  of  the  rule  of  this  case. 
In  the  present  case,  it  seems  to  me,  that  the  defendant,  before  reposing 
in  Sleight  the  confidence  of  employing  him  as  her  agent,  and  before 
making  this  contract,  had  not  received  that  fair,  open-disclosure  of 
Sleight's  relation  to  the  vendors  to  which  she  was  entitled,  and  that 
on  this  account  also,  the  equitable  relief  of  specific  performance  should 
be  denied. 

I  cannot  agree  with  complainant's  counsel  in  his  contention,  that 
Sleight's  duty  to  disclose  to  the  defendant  his  agency  for  the  purchas- 
ers, did  not  arise  until  after  the  acceptance  of  his  employment  as  her 
agent,  and  was,  therefore,  only  a  breach  of  his  duty  to  her  as  her 
agent,  for  which  she  must  look  to  him  alone,  and  for  which  the  com- 
plainant should  not  be  punished  by  refusal  to  decree  the  execution 


Ch    2)  DEFENSES.  199 

of  the  contract.  Sleight's  duty,  as  I  understand  it,  was  to  disclose  his 
relations  with  the  purchasers  before  accepting  the  agency  from  de- 
fendant  

Per  Curiam : — The  decree  affirmed,  for  the  reason  given  by  the  ad- 
visory master. 


BROWN  V.  SMITH. 

(Supreme  Court  of  Iowa,  1902,  89  N.  W.  1097.) 

PER  CURIAM.  The  plaintiff  held  a  contract  for  a  quarter  section 
of  land  in  Ottertail  county,  Minn.,  from  the  D.  S.  B.  Johnston  Land 
Company,  of  the  value,  according  to  the  evidence,  of  not  exceeding 
$4  per  acre,  and  claims  to  have  entered  into  an  agreement  with  de- 
fendant by  the  terms  of  which,  in  consideration  of  a  deed  to  defendant 
of  such  land,  on  which  was  to  be  executed  a  mortgage  of  $500  to 
said  company  by  defendant,  the  latter  undertook  to  convey  to  plain- 
tiff his  dwelling  house  and  two  lots,  of  the  estimated  value  of  from 
$1,600  to  $2,000,  subject  to  a  mortgage  to  a  building  and  loan  associa- 
tion of  $750.  The  defendant  admitted  as  a  witness  that  he  made  the 
contract,  but  insists  that  he  was  induced  to  do  so,  by  the  misrepresenta- 
tions of  the  plaintiff,  and  that  he  promptly  repudiated  it  upon  dis- 
covery that  the  land  was  not  as  it  had  been  represented.  April  2,  1899, 
Brown  wrote  of  the  land:  "It  is  good  soil,  only  about  two  and  a  half 
miles  from  Elkhart,  on  the  G.  N.  Ry. ;"  and  again,  on  April  9th :  "I 
wish  you  would  read  an  article  in  today's  St.  Paul  Dispatch  about 
Minn,  lands.  It  is  better  than  anything  I  can  say,  and  I  have  been 
studying  it  for  three  years."  Defendant  testified  that  plaintiff  told 
him  that  the  land  was  good  tillable  land,  which  cost  him  $10  per  acre, 
and  was  located  23/2  miles  from  the  above  station,  and  that  in  making 
the  agreement  he  relied  upon  these  statements.  The  plaintiff  denies 
this,  and  testified  that  he  advised  defendant  that  he  knew  nothing 
of  the  land,  and  that  the  latter  must  learn  for  himself.  But,  in  view 
of  plaintiff's  letters,  the  court  might  well  have  accepted  defendant's 
testimony  as  the  more  reliable.  True,  the  defendant,  who  knew  noth- 
ing personally  of  Ottertail  county,  made  inquiry  concerning  land,  but, 
through  probable  mistake  as  to  its  location,  was  misinformed  as  to  its 


200  SPECIFIC   PEEFORMANCE   OF  CONTEACTS  (Part    1 

character  and  value.  If  he  was  influenced  by  the  mistaken  advice,  it 
does  not  follow  that  he  did  not  rely  on  plaintiff's  misrepresentations,  so 
that  but  for  them  he  would  not  have  entered  into  the  agreement.  The 
land  was,  in  fact,  6  miles  instead  of  2>4  from  a  railroad  station,  in- 
cluding a  pond  or  lake  of  about  25  acres,  the  north  half  hilly  and 
sandy,  all  save  the  lake,  and  15  acres  of  slough,  covered  with  stumps 
and  brush,  and  only  80  acres,  after  being  cleared  that  could  be  culti- 
vated. Certain  it  is  that  with  correct  information  defendant  would 
not  have  considered  a  proposition  of  exchanging  property  in  which 
his  interest  was  from  $850  to  $1,250  for  a  $140  interest  in  such  land. 
As  the  plaintiff  was  undertaking  to  obtain  an  unfair  advantage  over 
defendant,  and  this,  in  so  far  as  successful,  was  accomplished  by  deceit, 
we  have  no  notion  of  lending  our  aid  to  enable  him  to  carry  out  his 
enterprise  of  getting  something  for  practically  nothing. 

Affirm  Ro 


HETFIELD  v.  WILLEY. 

(Supreme  Court  of  Illinois,  1883,   105  111.  286.) 

Mr.  Chief  Justicf  Scott.  .  .  .  The  bill  is  to  enforce  the 
specific  performance  of  a  written  agreement  between  complainant 
and  defendant,  concerning  a  sale  by  the  former  to  the  latter  of  his  in- 
terest in  the  firm  of  Frank  Field  &  Co.,  a  firm  then  and  previously 
engaged  in  manufacturing  crackers  and  confectioneries.  As  respects 
the  terms  of  the  agreement  there  can  be  no  controversy,  as  it  is  signed 
by  the  respective  parties.  It  obligated  defendant  to  pay  complainant 
$5000  for  his  interest  in  the  firm  of  Frank  Field  &  Co.,— $1000  of 
which  sum  was  to  be  paid  on  or  before  the  1st  day  of  August  next 
after  the  making  of  the  contract,  $2000  in  one  year  and  $2000  in  two 
years,  the  latter  payments  to  be  evidenced  by  two  promissory  notes, 
bearing  interest  at  the  rate  of  eight  per  cent  per  annum,  which  said 
notes  were  to  be  secured  by  a  mortgage  on  lands  of  defendant  describ- 
ed in  the  bill.  On  the  hearing,  the  circuit  court  decreed  a  specific 
performance  of  the  contract,  and  that  decree  was  affirmed  by  the 
Appellate  Court  for  the  First  District.  The  correctness  of  the  decision 
of  the  latter  court  is  called  in  question  on  this  appeal  of  defendant. 


Ch   2)  DEFENSES.  201 

The  defense  made  is,  that  the  contract  is  not  fair, — that  defendant 
was  induced  to  enter  into  it  under  a  misapprehension  of  the  real  facts, 
and  that  complainant  contributed  to  that  result  by  statements  not 
entirely  candid  or  accurate,  upon  which  defendant  confidently  relied, 
and  was  thus  overreached  in  the  transaction.     .     .     . 

It  appears  defendant  performed  the  contract  in  part  by  making 
payment  of  most  of  the  first  installment  agreed  to  be  paid,  and  then 
ceased  to  do  more.  Shall  he  now  be  compelled  to  go  forward  and 
complete  his  agreement?  To  do  so  would  undoubtedly  subject  defend- 
ant to  very  serious  loss.  On  the  principle  just  stated,  equity  will 
hesitate  to  compel  the  execution  of  a  contract  the  performance  of 
which  would  be  oppressive  on  the  obligated  party.  Considering  the 
whole  evidence  contained  in  the  record,  it  is  impossible  to  escape  the 
conviction  it  would  subject  defendant  to  considerable  loss  to  compel 
him  to  perform  the  contract  under  the  circumstances.  The  assets  of 
the  firm  were  not  near  so  valuable  as  defendant  supposed  them  to  be. 
The  concern  owned  many  more  local  bills  than  he  had  any  reason 
to  anticipate.  It  is  said  he  should  have  examined  the  books  to  have 
ascertained  more  accurately  the  value  of  the  firm  assets.  There  are 
two  answers  to  this  suggestion :  First,  the  books  did  not  show  to  a 
casual  observer  the  exact  condition  of  the  accounts  due  the  firm, 
whether  good  or  bad ;  and,  second,  the  books  kept  by  the  regular  book- 
keeper did  not  show  all  the  local  bills  owing  by  the  firm.  That  class 
of  bills  only  appeared  on  a  private  memorandum  book  kept  by  one 
member  of  the  firm,  who  had  charge  of  that  branch  of  the  business. 
This  fact  was  known  to  complainant,  and  was  not  known  to  defendant 
at  the  time  of  the  sale.  When  complainant  referred  defendant  to  the 
books  for  information,  he  did  not  advise  him  where  the  private  memo- 
randum book  containing  an  account  of  the  city  bills  owing  by  the 
firm  could  be  found.  Had  defendant  examined  the  books  as  any 
prudent  man  would  have  done,  it  will  be  presumed  he  would  have  ex- 
amined only  such  as  were  kept  by  the  book-keeper  of  the  firm.  It 
could  hardly  be  expected  he  would  have  inquired  whether  the  several 
partners  kept  private  memoranda  of  matters  pertaining  to  the  firm 
business.     It  is  proved     there  were  several  thousand  dollars  of  city 


202  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Part    1 

bills  owing  by  the  firm  that  did  not  appear  on  the  book-keeper's  book. 
The  amount  was  certainly  sufficient  to  very  materially  affect  the  value 
of  the  firm  assets.  Of  these  city  bills  defendant  did  not  seem  to  have 
had  any  knowdedge  when  he  executed  the  written  agreement  it  is 
sought  by  this  bill  to  enforce  by  a  decree  in  chancery.  Complainant 
had  full  knowledge,  and  he  ought  to  have  communicated  to  defendant 
that  information.  He  must  have  known  the  amount  of  the  city  bills 
very  materially  affected  the  value  of  his  interest  in  the  firm  he  was 
selling  to  defendant,  in  this  respect  he  does  not  stand  so  fair  that 
he  may  invoke  the  aid  of  a  court  of  equity. 

It  will  be  remembered  that  the  contract  was  made  on  the  6th  day  of 
July,  1880,  and  it  was  some  time  in  October  before  defendant  refused 
to  perform  it,  and  offered  to  rescind  the  agreement.  That,  it  is  said, 
was  too  late ;  that  he  should  have  discovered  sooner  he  had  been  over- 
reached, and  offered  to  rescind  the  contract.  That  may  be,  and  doubt- 
less is,  true ;  but  defendant  is  not  asking  the  aid  of  the  court  of  equity 
to  enable  him  to  rescind  the  agreement.  Nor  is  it  a  material  inquiry 
now  whether  defendant  could  rescind  the  contract  after  the  lapse  of 
so  great  a  period.  A  more  serious  question,  and  one  with  which  the 
court  has  now  to  deal,  is,  whether  complainant  has  shown  a  contract 
so  fairly  obtained,  and  so  just,  that  he  may  invoke  the  aid  of  a  court 
of  chancery  to  compel  a  specific  performance.  In  view  of  all  the 
circumstances  in  evidence  it  can  hardly  be  said  that  he  has.  His  con- 
tract with  defendant  may  be  a  legal  one,  and  defendant  may  be  re- 
quired to  abide  it  or  answer  in  damages.  That  question  need  not  now 
be  determined.  Conceding  that  agreement  is  obligatory  on  both  parties, 
under  all  the  circumstances  it  seems  most  proper  they  should  be  re- 
ferred to  the  law  courts  to  adjust  the  difficulties  between  them.  What- 
ever claim  complainant  may  have  against  the  defendant,  arising  out 
of  the  agreement,  may  be  compensated  by  damages  recoverable  in 
an  action  at  law.  It  is  no  answer  to  this  view  of  the  law  to  say  that 
complainant  may  have  told  defendant,  in  the  office  of  the  lawyer  who 
prepared  the  papers,  he  did  not  know  what  his  interest  in  the  firm  was 
worth,  and  that  he  wanted  it  understood  he  was  selling  his  interest, 
whatever  it  might  be,  for  the  sum  named  in  the  contract.  He  may  have 
told  him  all  this,  and  yet  if  he  obtained  an  unfair  contract  from  de- 
fendant by  failing  to  disclose  material  facts  affecting  the  value  of  the 
interest  he  was  selling,  equity  will  not  decree  the  execution  of  the 


Ch   2)  DEFENSES.  203 

agreement  in  his  favor.    It  will  leave  him  to  his  remedy  at  law,  what- 
ever it  may  be. 

The  judgment  of  the  Appellate  Court  will  be  reversed  and  the  cause 
remanded. 


ISAACS  V.  SKRAINKA. 

(Supreme   Court   of    Missouri,    1888,    95    Mo.    517,   8   S.   W.   427.) 

Black^  J.  This  is  a  suit  brought  by  Isaacs  for  the  speci- 
fic performance  of  a  written  contract,  dated  February  17,  1882,  and 
signed  by  the  parties  therein  named.  The  contract  is  in  the  following 
words :  "William  Skrainka  and  Claus  Vieths  agree  to  take  all  the 
property  of  J.  L.  Isaacs  now  proceeded  against  on  special  tax  hWh 
in  their  favor  and  against  said  property,  before  Justice  Taaffe  and  in 
the  circuit  court,  city  of  St.  Louis,  at  fourteen  hundred  dollars,  and 
J.  L.  Isaacs  agrees  to  convey  to  them  said  property  by  quit-claim  deed 
for  said  sum."     .     .     . 

The  substance  of  the  defence  is,  that  there  were  other  outstanding 
tax  bills  against  the  property  for  other  improvements,  amounting 
to  about  one  hundred  and  fifty  dollars ;  that  Isaacs  fraudulently  con- 
cealed the  existence  of  these  tax  bills,  and  represented  the  property 
to  be  free  from  such  liens.     .     .     . 

The  defendants  in  taking  the  property  at  fourteen  hundred  dollars 
subject  to  their  tax  bills  and  taxes  for  1882  were  to  pay  the  full  value 
of  the  property.  They  had  information  that  led  them  to  believe  that 
work  had  been  done  for  which  other  tax  bills  could  be  issued.  It  is 
conceded  on  all  hands  that  the  taxes  for  1882  were  considered,  and  it 
it  reasonable  to  believe  that  other  incumbrances  were  spoken  of ;  and 
the  fact  that  Isaacs  would  not  make  a  warranty  deed  makes  it  the  more 
probable  that  inquiry  was  made  in  respect  of  other  incumbrances. 
Three  witnesses  say  that  Isaacs  said  the  property  was  free  from  such 
liens.  He  denies  that  he  made  the  representation,  and  two  witnesses, 
who  were  in  a  position  to  hear,  say  they  heard  no  such  representations. 
It  is  a  familiar  rule  that  where  the  witnesses  are  equally  credible,  the 
positive  evidence  that  a  given  thing  was  said  is  of  more  weight  than 
that  of  others  who  say  they  did  not  hear  the  alleged  statement.  Henze 
V.  Railroad,  71  Mo.  639. 


204  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Pai't    1 

Giving  to  the  finding  of  the  court  due  consideration,  still  we  can 
come  to  no  other  conclusion  than  this,  that  Mr.  Isaacs  did  lead  the  de- 
fendants to  believe  the  property  was  free  from  other  liens,  and  that 
this  led  them  to  agree  to  take  a  quit-claim  deed.  While  the  representa- 
tions may  not  be  such  as  would  support  an  action  at  law  for  fraud 
and  deceit,  still  it  must  be  remembered  that  this  is  an  action  for  spe- 
cific performance  prosecuted  by  the  vendor.  Fry  says:  "In  equity, 
however,  it  furnishes  a  good  defence  to  a  suit  for  specific  performance 
that  the  plaintiff  made  a  representation  which  was  not  true,  though 
without  knowledge  of  its  untruth,  and  this  even  though  the  mistake 
be  innocent."  Fry  on  Spec.  Perf.,  sec  432.  This  distinction  is  point- 
ed out  in  Dunn  v.  White,  63  Mo.  182.  It  is  held  that  it  requires  much 
less  strength  of  case  on  the  part  of  a  defendant  to  resist  a  bill  to  per- 
form a  contract  than  it?  does  on  the  part  of  the  plaintiff,  to  main- 
tain a  bill  to  enforce  specific  performance.  Veth  v.  Gierth,  92  Mo.  97. 
To  defeat  the  specific  performance  of  a  contract  it  is  enough  that 
the  representation  was  material,  was  actually  untrue,  was  relied  upon, 
and  did  mislead  the  other  party.  It  need  not  have  been  made  with 
an  intent  to  deceive.  Pom.  Spec.  Perf.  sees,  217,  218. 

We  do  not  think  the  fact  that  defendants  were  to  take  a  quit-claim 
deed  is  of  any  controlling  importance.  Fry  says :  "The  circumstance 
that  the  vendor  sold  'with  all  faults,'  though  it  may  serve  to  put  the 
purchaser  on  his  guard,  will  not  enable  the  vendor  to  say  that  the 
purchaser  did  not  rely  on  his  representation,  or  prevent  the  purchaser 
from  avoiding  the  sale,  if  the  representation  was  false."  Fry  on  Spec. 
Perf.,  sec.  455.  Our  conclusion  is,  that  the  plaintiff  is  not  entitled 
to  specific  performance  so  long  as  the  property  remains  incumbered 
by  these  tax  bills,  amounting  to  a  hundred  and  fifty  dollars  or  there- 
abouts. As  the  judgment  must  be  reversed,  the  cause  will  be  remand- 
ed; for  while  the  title  may  not  have  been  perfect  when  the  suit  was 
commenced,  still  specific  performance  may  be  decreed,  if  the  title  be 
perfected  before  judgment  or  decree.  Luckett  v.  Williamson,  Z7  Mo. 
389. 

Judgment  reversed  and  cause  remanded.    All  concur. 


Ch  2)  DEFENSES.  205 


DURRETT  V.  HOOK. 

(Supreme  Court  of  Missouri.  1844,  8  Mo.  374.) 

Tompkins,  J.  On  the  eleventh  day  of  June,  in  the  year  1838, 
WilHam  Hook  commenced  this  suit  against  Richard  Durrett  and 
Edmund  McAlexander,  in  the  Circuit  Court  of  Sahne  county,  on  the 
chancery  side  thereof.  In  his  bill  he  states,  that  on  the  25th  day  of 
October,  1834,  Richard  Durrett  made  and  executed  to  Edmund  Mc- 
Alexander his  writing  obligatory,  by  which  he  bound  himself  to  exe- 
cute and  make  to  said  McAlexander  a  good  and  lawful  deed  to  a  cer- 
tain tract  of  land  in  said  county,  containing  one  hundred  and  twenty 
acres;  and  that,  for  a  good  and  valuable  consideration  paid  by  Elijah 
Hook  and  William  Hook,  the  complainant,  the  said  McAlexander  as- 
signed to  them  the  said  writing  obligatory ;  and  the  said  conveyance 
having  to  be  made  by  the  said  Richard  Durrett  on  demand,  and  Elijah 
Hook,  one  of  the  assignees  thereof,  having  departed  this  life  on  the 
first  day  of  July,  1835,  the  complainant,  William,  on  the  first  day  of 
January,  1838,  demanded  of  the  said  Durrett  a  deed  for  the  same, 
according  to  the  terms  of  the  said  writing  and  the  said  Durrett  refused 
to  make  the  same,  &c. 

The  complainant  further  alleges,  that  he  is  sole  devisee  and  executor 
of  the  said  Elijah  Hook.     .     .     . 

The  defendant  in  error  contends,  that  as  Benjamin  L.  Durrett,  if 
he  had  brought  an  action  against  the  complainant.  Hook,  or  against 
McAlexander,  on  the  agreement  of  pay  $280  in  time  specified,  i.  e., 
two  or  three  days,  would,  under  the  statute  of  set-off,  be  compelled 
to  receive  the  notes  by  him  made  to  Hook  in  pay,  therefore,  when 
Hook,  by  his  bill  in  chancery,  prays  a  specific  performance  of  the 
contract  to  convey  land,  Durrett  shall  be  compelled  to  take  the  con- 
sideration to  be  paid  for  the  land  in  his  own  notes.  I  cannot  perceive 
that  the  one  is  a  consequence  of  the  other.     .     .     . 

But  if  we  admit,  for  the  present,  that  a  court  of  equity  could  cor- 
rectly compel  a  defendant,  who  had  promised  to  convey  for  a  con- 
sideration in  money,  to  receive  his  own  notes  in  payment  for  the  land, 
yet  the  court  will  always  see  that  the  person  who  prays  its  aid  comes 
in  with  clean  hands.     In  this  case.  Hook  first  introduces  his  complaint 


206  SPECIFIC   PERFOBMANCE  OP  CONTEAOTS  (Part    1 

with  the  most  impertinent  and  irrelevant  charge  that  the  title  to  this 
land  was  held  by  Richard  Durrett  to  deceive  and  defraud  the  creditors 
of  Benjamin  L.  Durrett;  that  he,  B.  L.  Durrett,  was  largely  indebted, 
and  owed  Hook  a  large  sum  of  money.  He  next  introduces  this  said 
McAlexander,  whom  he  had  released  in  order  to  render  him  compe- 
tent, to  prove  his  own  unworthiness.  McAlexander,  as  above  stated, 
declares  that  in  the  treaty  for  this  land  he  had  cautiously  concealed 
from  B.  L.  Durrett  that  the  first  payment  ($280)  was  to  be  made  in 
his  own  (Durrett's)  notes,  and  that  he  did  not  believe  that  Durrett 
would  have  agreed  to  sell  him  the  land  if  he  had  not  expected  to  re- 
ceive the  first  payment  in  cash,  and  the  statement  of  this  witness  is 
sufficient  to  induce  any  one  to  believe  that  it  was  intended  by  Durrett 
that  the  delivery  of  the  deed  and  the  payment  of  the  sum  of  $280 
should  be  simultaneous  acts.  But  as  it  seerns,  he  takes  up  the  deed 
and  goes  off  hastily,  observing,  that  in  two  or  three  days  he  would 
pay  the  money  to  B.  L.  Durrett.  He  gave  no  written  promise  to  pay 
the  money.  No  man  of  business  habits  would  have  suffered  the  bond 
to  be  carried  away  under  such  circumstances,  nor  would  any  honest 
candid  man  have  attempted  such  an  act.  Mr.  Hook  not  only  receives 
this  obligation  by  assignment  stained  with  the  grossly  improper  con- 
duct of  his  assignor ;  but  his  own  witness,  this  said  McAlexander, 
proves  that  he  prompted  the  witness  to  the  act.  If  the  conduct  of 
McAlexander  had  been  otherwise  honest,  a  delivery  of  the  bond  by 
Durrett  would  be  presumed,  but  as  the  case  now  is  in  evidence,  a  jury 
would  be  very  easy  indeed  to  find  a  delivery  of  the  bond.     .     .     . 


CALDWELL  v.  DEPEW. 

(Supreme  Court  of  Minnesota,  1889,  40  Minn.  528,  42  N.  W.  479.) 

MiTCHKLL,  J.  Action  to  compel  specific  performance  of  a 
contract  of  sale  of  real  estate.  The  terms  of  the  written  agreement 
were  that  defendant  sold  and  agreed  to  convey  the  property  "for  the 
sum  of  seven  hundred  fifty  dollars,  upon  the  following  terms :  Pur- 
chaser to  pay  the  city  assessments  for  grading  Minnehaha  street,  ($205) 
such  payment  to  constitute  part  of  the  above  sum  of  $750,  and  also 
to  assume  the  mortgage  of  $300  and  accrued  interest,  ($12)  now  on 
record  against  said  lot,  as  part  of  said  $750 ;  balance  of  said  $750,  after 


Ch   2)  DEFENSES,  207 

deducting  said  assessments  and  said  mortgage,  to  be  paid  in  cash,  on 
delivery  of  deed."  The  defendant  in  his  answer,  alleged  that  the  ac- 
tual agreement  was  that  plaintiff  was  to  pay  for  the  property  $750  in 
cash,  and,  in  addition  thereto,  assume  payment  of  the  mortgage  and 
assessments  referred  to;  that  plaintiff  undertook  to  reduce  this  agree- 
ment to  writing,  and  drew  up  a  contract  which  he  presented  to  de-, 
fendant,  stating  and  representing  to  him  that  it  contained  the  precise 
terms  of  this  agreement,  and  then  pretended  to  read  it  and  did  read  it  to 
him  as  though  it  embodied  such  agreement ;  that  in  ignorance  of  the 
truth,  and  misled  by  the  statements  of  plaintiff,  and  supposing  that 
plaintiff  had  correctly  reduced  the  agreement  to  writing,  he  executed 
the  contract  without  reading  it.  Then  follows  a  somewhat  equivocal 
allegation  to  the  effect  that  if  plaintiff  really  believed  that  defendant 
intended  to  sell  his  property  for  $750,  the  incumbrances  to  be  deducted 
therefrom,  he  was  acting  under  a  mistake  of  fact,  but,  if  he  correctly 
understood  the  terms  and  conditions  of  said  agreement,  as  defendant 
believes  he  did,  then  he  committed  a  gross  fraud.  The  relief  prayed 
for  is  that  the  contract  be  cancelled  and  adjudged  void  on  the  ground 
of  such   fraud  or  mistake.     .     .     . 

But  we  are  clear  he  has  made  out  no  clear  case  for  relief.      There 
is  no  evidence  that  plaintiff  was  guilty  of  any  fraud,  concealment,  or 
misrepresentations,  or  took  any  unfair  advantage  of  defendant.     The 
defendant  is  a  man  of  mature  years,  some  business  experience,  and  of 
at  least  ordinary  intelligence  and  education.   The  terms  of  the  writing 
are  explicit,  unambiguous,  and  not  subject  to  any  doubtful  or  double 
construction.     In  fact  they  are  so  very  clear  and  explicit  that  no  man 
with  his  senses  about  him  could  misapprehend  them.     The  defendant 
w^as  capable  of  reading  the  contract,  and  had  ample  opportunity  of 
doing  so,  and  of  examining  it  as  fully  as  he  desired,  before  executing 
it.    It  is  undisputed  that  he  either  read  it  over  himself  with  the  plain- 
tiff or  that  the  plaintiff  read  it  over  to  him,  before  he  signed  it,  and,  if 
the  latter,  there  is  no  evidence  that  plaintiff  did  not  read  it  correctly  to 
him.   Defendant  nowhere  testifies  that  he  understood,  when  he  signed 
it,  that  it  contained  any  different  or  other  words  or  language  from  those 
that  are  actually  in  it.    The  most  that  can  be  claimed  for  his  testimony 
is  that  he  did  not  understand  the  meaning  or  legal  effect  of  the  language 
as  written.     No  excuse  is  shown  for  any  such  misunderstanding,  and 
the  mistake,  if  any,  must  have  been  due  solely  to  defendant's  own 


208  SPECIFIC   PEEFORMANCE   OF  CONTBACTS  (Part    1 

gross  carelessness  and  inexcusable  inattention.  There  is  nothing  un- 
conscionable or  hard  about  the  contract,  unless  it  be  the  inadequacy 
of  the  price,  and  this  is  not  so  gross  as  to  be  evidence  of  fraud.  Upon 
the  trial  plaintiff  testified  positively  that  the  writing  correctly  embodied 
the  exact  terms  of  the  actual  agreement  of  the  parties.  The  only  direct 
evidence  opposed  to  this  was  the  oath  of  the  defendant.  We  know  of 
no  rule  of  law  that  will  permit  a  man  to  be  relieved  from  his  contract 
under  such  circumstances.  If,  on  such  a  state  of  facts,  a  person  can 
evade  performance  by  merely  saying  that  he  did  not  know  what  he 
was  doing,  or  did  not  understand  the  language  of  the  instrument  which 
he  executed,  written  contracts  would  be  of  little  value. 

There  are  many  cases  where  equity  will  refuse  to  enforce  the  spe- 
cific performance  of  an  agreement  against  a  party  who  entered  into 
it  under  a  mistake,  although  the  plaintiff  was  not  guilty  of  any  improp- 
er conduct,  and  the  mistake  was  solely  that  of  defendant.  When  and 
under  what  circumstances  such  mistakes  are  relievable  it  would  be 
impracticable,  as  well  as  unsafe,  to  attempt  to  enumerate.  But  one 
principle  will,  we  think,  be  found  to  run  through  all  the  cases,  viz.,  it 
must  not  be  a  mistake  due  solely  to  the  negligence  and  want  of  reason- 
able care  on  the  part  of  him  who  asks  for  relief.  Where  there  has  been 
no  fraud  or  misrepresentation,  and  the  terms  of  the  contract  were 
unambiguous,  so  that  there  was  no  reasonable  ground  or  excuse  for 
a  mistake,  it  is  not  sufficient,  in  order  to  resist  specific  performance, 
for  a  party  to  say  that  he  did  not  understand  its  meaning.  Fry,  Spec. 
Perf.  §  733;  Waterman,  Spec.  Perf.  §  358;  Kerr,  Fraud  &  Mis- 
take, 407,  413. 

Judgment  reversed 


C,  B.  &  Q.  R.  R.  V.  RENO. 

(Supreme  Court  of  Illinois,  1885,  113  111.  39.) 

Craig,  J.  In  1858,  one  Abner  Reeves  owned  lots  26  to  46, 
inclusive,  in  block  63,  in  school  section  addition  to  Chicago,  bounded 
on  the  north  by  Forquer  street,  on  the  east  by  Beach  street,  on  the 
south  by  Taylor  street,  and  on  the  west  by  an  alley.  In  the  year  1858, 
the  Pittsburg,  Fort  Wayne  and  Chicago  Railway  Company,  under  the 
authority   of   an   ordinance   of   the   city   of    Chicago,   constructed   its 


Ch   2)  DEFENSES.  200 

tracks  on  Beach  street.  The  tracks  so  constructed  were  also  used  by 
the  Chicago  and  Alton  Railroad  Company,  and,  as  appears  from  the 
record,  were  the  main  tracks  running  to  the  passenger  depot  of  the 
two  companies.  Soon  after  these  tracks  were  laid,  a  switch  was  built 
on  Beach  street,  which  connected  the  tracks  of  the  Fort  Wayne  com- 
pany w'ith  tracks  owned  by  Reeves  upon  his  lots,  by  means  of  which, 
cars  passing  over  the  Fort  Wayne  and  Alton  roads  were  switched 
upon  Reeves'  premises,  which  were  used  by  him  as  a  coal  and  lumber 
yard.  In  1875  Reeves  died,  leaving  Sarah  A.  Reno  and  Euginia  M. 
Little,  two  of  his  heirs,  who  purchased  the  interest  of  the  other  heirs 
in  said  premises.  After  they  acquired  title  their  husbands,  under  the 
firm  name  of  Reno  &  Little,  occupied  a  portion  of  the  lots  as  a  coal 
yard.  On  the  28th  day  of  July,  1880,  Mrs.  Reno  and  Little  sold  the 
Pittsburg,  Fort  Wayne  and  Chicago  Railway  Company  lots  32  to  40, 
inclusive,  in  block  63,  for  the  sum  of  $35,000,  being  one  hundred  feet 
each  side  of  lots  26  to  46.  The  contract  of  sale  was  reduced  to  writ- 
ing and  contained  the  following  clause :  "And  it  is  further  so  agreed 
between  the  parties  hereto,  that  said  second  party  shall,  on  taking 
possession  of  the  premises  as  hereinbefore  described,  restore  all  the 
switch  connections  now  existing  between  said  second  party  and  said 
first  party,  or  any  of  them,  and  continue  to  them  the  use  of  the  same, 
hereafter  as  heretofore."  .  .  .  The  Fort  Wayne  and  Alton  com- 
panies, after  taking  possession  of  the  premises  conveyed  to  them, 
restored  the  switch  connections,  as  provided  in  the  contract  of  sale; 
but  the  Burlington  road,  upon  entering  into  possession  of  the  premises 
conveyed  to  it  by  Layng,  removed  the  switch  connections  and  tracks 
wdiich  crossed  the  premises  conveyed  to  it,  and  constructed  upon  said 
premises  seven  tracks,  which  it  has  used  and  operated  ever  since. 
After  the  Burlington  road  had  removed  the  tracks  which  formed  the 
switch  connections,  the  Alton  and  Fort  Wayne  roads  were  requested 
to  restore  the  switch  connections,  as  provided  in  the  written  contract 
of  sale,  but  the  railroad  companies  declined  to  comply  with  this  request, 
and  Sarah  A.  Reno,  and  her  husband,  Charles  A.  Reno,  Euginia  M. 
Little  and  Jacob  II.  Little,  her  husband,  filed  a  bill  for  a  specific  per- 
formance of  that  part  of  the  contract  of  sale  providing  for  a  switch 
connection  over  the  premises.     .     .     . 

In  Chicago  and  Alton  Railroad  Co.  v.  Schoeneman,  90  111.  258,  which 
was  a  bill  brought  by  certain  parties  to  compel  the  railroad  company 
1  Eq.  14 


210  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    1 

to  construct  and  maintain  a  certain  swing  drawbridge,  in  conformity 
with  an  agreement  in  that  regard,  it  was  declared  to  be  a  settled  prin- 
ciple that  a  specific  performance  of  a  contract  is  not  to  be  decreed  as  a 
matter  of  course  because  a  legal  contract  is  shown  to  exist,  but  it  rests 
entirely  in  the  discretion  of  the  court,  upon  a  view  of  all  the  circum- 
stances of  the  case.  In  the  same  case  it  was  also  held :  "Where  the 
effect  of  the  specific  performance  would  be  to  impose  upon  the  defend- 
ants a  large  expenditure  and  heavy  burden,  and  inconvenience  to  pub- 
lic interests,  without  any  practical  benefit  to  the  other  party,  a  court 
of  equity,  in  the  exercise  of  its  discretion,  will  refuse  to  decree  it, 
and  leave  such  other  party  to  whatever  remedy  he  may  have  at  law  for 
a  breach  of  the  contract."     .     .     . 

The  passenger  and  freight  depots  of  the  Burlington  road  are 
located  three  blocks  north  of  the  premises  owned  by  appellees,  and 
the  seven  tracks  constructed  by  the  Burlington  road  on  the  premises 
conveyed  by  Layng  to  it,  are  the  only  tracks  owned  by  the  company 
where  its  freight  and  passenger  trains  can  be  made  up.  The  Burling- 
ton road  has  invested  in  freight  and  passenger  depots  about  $1,500,000. 
Thomas  L.  Potter,  general  manager,  whose  evidence  is  not  contradict- 
ed, testified  that  the  passenger  tracks  are  used  continually  all  times 
of  the  day.  Trains  are  arriving  and  departing  all  the  time,  and  every 
train  that  comes  in  has  to  be  made  up  on  those  tracks.  He  also  testi- 
fied that  two  hundred  freight  trains  a  day  pass  over  the  tracks,  in  and 
out.  In  answer  to  a  question  as  to  the  effect  of  the  construction  of 
switches  across  the  tracks  would  have  upon  the  business  of  the  road 
he  testified  that  it  would  ruin  the  tracks  for  business.  Indeed,  it 
appears  from  the  evidence  that  it  would  be  impracticable  to  operate 
the  proposed  switches  over  the  Burlington  tracks,  on  account  of  the 
constant  use  that  is  made  of  these  tracks  by  the  Burlington  road. 
It  seems  plain  from  the  evidence,  that  the  construction  of  the  pro- 
posed switches  across  the  tracks  of  the  Burlington  road  would  seri- 
ously embarrass  its  operation  at  that  point.  The  effect  could  not  be 
otherwise  than  to  delay  trains  carrying  both  passengers  and  freight, 
and  endanger  their  safety.  The  carrying  of  the  mails  would  be  re- 
tarded, and,  indeed,  the  commercial  business  of  the  country  would,  to 
a  great  extent,  be  disturbed.  These  are  matters  in  which  the  public, 
as  well  as  the  Burlington  road,  have  an  interest,  and  we  are  satisfied, 
from  the  evidence,  that  if  the  decree  should  be  sustained  the  public 
business  of  the  country  would  be  seriously  damaged. 


Ch    2)  DEFENSES. 


211 


Under  such  circumstances,  and  where  such  results  are  to  follow, 
would  it  be  proper  for  a  court  of  equity  to  decree  a  specific  perform- 
ance of  the  contract?     The  decree  would  impose  upon  the  Burling- 
ton road  a  large  expenditure  of  money  and  a  heavy  burden,  and  would 
be  a  detriment  to  the  public  interest,  and  it  is  condemned  under  the 
ruling  in  the  Schoeneman  case,  supra.    The  decree  would  also  produce 
hardship  and  injustice  to  one  of  the  parties,  and  can  not  be  sustained 
under  the  ruling  in  Willard  v.  Taylor,  supra.     Nor  will  the  denial  of 
relief  in  equity  operate  detrimental  to  the  rights  of  appellees.     If  they 
have  been  damaged  by  a  breach  of  the  contract  they  have  an  ample 
remedy  at  law,  in  an  appropriate  action.     Nor  will  the  denial  of  the 
relief  prayed  for  in  the  bill  destroy  the  business  of  appelles,  or  destroy 
the  use  of  the  property  as  a  coal  yard.     The  record  shows  that  the 
Burlington  road  has  laid  tracks  immediately  adjoining  appellees'  prop- 
erty, which  tracks  are  used  by  the  company,  and  connect   with  its 
main  line,  and  the  main  line  connects  with  all  the  roads  leading  into 
the  city.     Section  5,  article  13,  of  our  constitution,  requires  that  "all 
railroad  companies  shall  permit  connections  to  be  made  with  their 
tracks,  so  that  any  such  consignee,  and  any  public  warehouse,  coal 
bank  or  coal  yard,  may  be  reached  by  the  cars  on  said  railroad."  Under 
this  provision,  appellees'  property,  as  a  coal  yard,  may,  if  they  so  desire, 
have  switch  connection  with  the  Burlington  road,  and  being  so  con- 
nected, they  will  also  have  connection  with  all  other  roads  in  the  city. 
Indeed,  in  the  answer  the  Burlington  road  sets  up  that  its  tracks  con- 
nect with  the  Fort  Wayne  and  Alton  roads,  and  all  other  lines  in  the 
city,  and  offers  to  connect  its  line  of  road  with  the  premises  of  appel- 
lees. 

After  a  careful  consideration  of  all  the  evidence  in  the  record, 
we  are  satisfied  that  the  decree  of  the  Superior  Court  is  not  right. 
The  judgment  of  the  Appellate  Court  will  therefore  be  reversed,  and 
the  cause  remanded.  Judgment  reversed. 


CODING  V.  BANGOR  &  AROOSTOOK  R.  R. 
(Supreme  Court  of  Maine,  1001,  94  Me.  542,  48  Atl.  114.) 

WiswELL,  C.  J.       The     defendant's  railroad  extends  through  the 
plaintiff's   farm.       The   right   of   way   therefor   was   obtained   by   a 


212  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    1 

deed  from  the  plaintiff  to  the  raih'oad  company,  for  a  consideration 
named  therein  of  one  hundred  and  fifty  dollars.  But  the  plaintiff 
claims  that  there  was  an  additional  consideration ;  that  the  defendant's 
agent  who  procured  the  conveyance  of  the  right  of  way  and  who  agreed 
with  the  plaintiff  in  relation  to  the  terms  for  such  conveyance,  promis- 
ed in  behalf  of  the  company,  as  a  further  consideration  therefor,  that 
the  railroad  company  should  build  and  maintain  a  farm  crossing  on 
the  plaintiff's  farm  across  the  railroad  track.  In  this  bill  in  equity, 
the  plaintiff  seeks  a  decree  for  a  specific  performance  of  this  alleged 
contract.    The  case  comes  to  the  law  court  upon  report. 

The  plaintiff's  contention  is  denied  by  the  defendant  and  there 
consequently  arises  an  issue  of  fact  about  which  there  is  considerable 
controversy  between  the  parties.  But  we  do  not  deem  it  necessary 
to  determine  this  question.  Assuming,  without  deciding,  that  the  al- 
leged agreement  was  made  as  part  of  the  consideration  for  the  con- 
veyance, we  do  not  think  that  specific  performance  should  be  decreed. 

The  granting  of  a  decree  for  specific  performance  is  always  dis- 
cretionary with  the  court.  The  contract  relied  upon  in  any  case 
may  be  proved  in  the  most  satisfactory  manner,  and  still  there  may  be 
reasons  why  the  court,  in  the  exercise  of  its  discretion,  should  not 
compel  specific  performance  of  that  contract.  We  think  that  such 
reasons  exist  in  this  case,  and  that  before  a  court  should  compel  a 
railroad  company  to  build  and  maintain  a  grade  crossing  over  its 
track,  except  in  cases  where  public  convenience  may  require  it,  or  per- 
haps where  there  might  be  very  great  individual  inconvenience  if  it 
were  not  ordered,  the  court  should  be  satisfied  that  the  danger  to  pub- 
lic travel  will  not  thereby  be  much  increased,  or  that  the  additional 
burden  placed  upon  the  railroad  company  would  not  be  greatly  dis- 
proportionate to  the  benefit  that  would  be  derived  by  the  individual. 

Very  much  is  required  of  railroads  to  meet  the  demands  of  the 
public  for  the  rapid  transportation  of  passengers  and  freight,  to  com- 
ply with  which  the  utmost  diligence  must  be  exercised  and  everything 
that  affords  unnecessary  opportunities  for  danger  must  be  done  away 
with.  A  grade  crossing  over  a  railroad  track  is  a  place  of  recognized 
danger,  and  every  additional  crossing  necessarily  increases,  to  some  • 
extent,  that  danger.  The  time  has  not  yet  arrived  when  such  cross- 
ings can  be  dispensed  with  altogether,  at  least  in  sparsely  settled 
communities,  but  they  should  not  be  unnecessarily  increased  for  the 


Ch    2)  DEFENSES.  213 

mere  convenience  of  an  individual.  At  least,  we  think,  the  court 
should  not  compel  the  maintenance  of  such  a  crossing  unless  good  and 
sufficient  reasons  exist  therefor. 

In  this  case,  in  the  opinion  of  the  court,  the  benefit  to  be  derived 
by  the  plaintiff,  if  a  decree  were  granted,  would  be  slight  in  comparison 
with  the  additional  burden  placed  upon  the  railroad  company,  and 
the  danger  to  travel  upon  the  railroad  would  be  considerably  increased. 
It  appears  that  just  north  of  the  place  of  the  proposed  crossing  there 
is  a  cut  for  a  distance  of  eight  hundred  and  seventy  feet,  through 
which  the  railroad  track  runs  on  a  curve,  so  that  a  train  coming  south 
would  enter  this  cut  near  the  northerly  limit  of  the  plaintifif's  land  and 
continue  on  a  curve  all  the  way  through  this  cut  until  it  reached  the 
place  of  the  proposed  farm  crossing,  which,  because  of  the  curve  and 
cut,  would  be  shut  out  from  the  view  of  the  approaching  train.  It  is 
argued,  and  it  seems  to  us  with  much  force,  that  upon  this  account  the 
proposed  crossing  would  be  much  more  dangerous  than  under  other 
conditions.  South  of  the  place  of  the  proposed  crossing,  and  only  two 
hundred  and  thirty  feet  distant  therefrom,  there  is  already  a  highway 
crossing  over  the  track,  so  that  if  this  crossing  were  ordered,  there 
would  be  two  grade  crossings  within  a  distance  of  two  hundred  and 
thirty  feet.  And  by  reason  of  this  highway  crossing  over  the  railroad 
track,  the  plaintiff  can,  with  slight  inconvenience  use  that  crossing  for 
his  purpose. 

For  these  reasons  we  do  not  think  that  the  relief  asked  for  should 
be  granted.  We  are,  perhaps,  more  ready  to  come  to  this  conclusion 
because  of  the  fact  that  the  plaintiff  is  not  without  ample  remedy.  If 
he  is  right  in  his  contention,  he  may  recover  adequate  pecuniary  com- 
pensation for  any  and  all  damages  that  he  has  sustained  by  reason  of 
the  failure  of  the  company  to  perform  the  contract  made  by  its  author- 
ized agent  in  this  respect. 

As  we  have  come  to  this  conclusion,  for  the  reason  above  stated, 
and  not  because  of  a  decision  adverse  to  the  plaintiff  upon  the  issue  of 
facts,  the  bill  should  be  dismissed  without  costs. 


CIIUBB  V.  PECKHAM. 

(New  Jersey  Court  of  Chancery,  ]800,  i:5  N.  J.  Eq.  207.) 

The  Chancellor.     On  the  7th  of   April,    1855,   William   Chubb 
and    Lydia,    his    wife,    by    deed    of    that    dale,    conveyed    to    their 


214  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    1 

two  children,  William  F.  Chubb  and  Emma  Peckham,  a  small  farm, 
in  the  county  of  Somerset,  containing  about  46  acres  of  land. 

By  an  agreement  of  even  date  with  the  deed,  under  the  hands  and 
seals  of  their  children,  made  between  the  children,  of  the  one  part,  and 
their  parents,  of  the  other,  the  children  agreed,  in  consideration  of  the 
conveyance,  to  provide  for  the  support  and  maintenance  of  their 
parents,  and  each  of  them,  in  a  comfortable  manner,  to  provide  and 
furnish  each  of  them  with  proper  and  suitable  clothing,  food,  medicine 
and  medical  attendance,  when  sick,  and  to  find  a  comfortable  place  to 
live  in — all  to  be  according  to  their  age  and  situation  in  life — for  and 
during  their  natural  lives  and  the  life  of  the  survivor  of  them.  The 
children  further  agreed  to  accept  the  title  which  the  father  had  in  the 
premises;  and  in  case  of  any  adverse  claim  of  title,  to  be  at  the  ex- 
pense of  defending  the  title  which  they  thus  acquired. 

This  bill  is  filed  by  the  father  against  the  children,  and  charges  a 
failure  upon  their  part  to  perform  the  contract,  and  asks  either  that 
the  contract  be  rescinded,  and  the  lands  re-conveyed  to  the  complain- 
ant, or  that  a  specific  performance  be  decreed. 

A  decree  pro  confesso  is  taken  against  the  son.  The  daughter  alone 
answers.  She  admits  the  contract,  alleges  that  they  took  the  title  at  her 
father's  request,  and  solely  for  the  purpose  of  aiding  her  aged  parents; 
that  she  has  received  nothing  whatever  from  the  farm ;  that  its  entire 
proceeds,  together  with  considerable  sums  advanced  by  herself,  have 
been  appropriated  to  the  support  of  her  parents ;  that  at  the  time  of  the 
contract  it  was  understood  and  agreed  that  the  father  should  remain 
upon  the  farm,  and  assist  in  its  cultivation,  until  a  sale  could  be  affect- 
ed; that  the  proceeds  of  the  farm,  and  the  limited  means  of  the  de- 
fendant, are  utterly  inadequate  to  support  her  parents  elsewhere 
than  on  the  farm,  and  with  their  assistance.  She  proffers  herself 
ready  and  willing  to  reconvey  the  land,  if  the  sums  she  has  advanced 
under  the  contract  are  repaid  to  her. 

The  evidence  in  the  cause  shows  that  the  farm  was  conveyed  to  the 
defendants,  not  at  their  request,  but  at  the  solicitation  of  the  com- 
plainant, and  that  the  title  was  reluctantly  accepted  by  Mrs.  Peckham, 
the  daughter ;  that  she  has  derived  no  benefit  from  it,  but  that  the  con- 
tract into  which  she  entered  upon  taking  the  title  has  involved  her 
in  serious  trouble  and  pecuniary  loss.  The  evidence,  moreover,  tends 
to  confirm  the  allegation  of  the  answer,  that  she  accepted  the  title, 


Ch    2)  DEFENSES.  215 

and  entered  into  the  contract  for  her  parents'  support  upon  the  faith 
of  a  parol  agreement,  cotemporaneous  with  the  written  contract,  that 
her  father  would  remain  upon  the  farm,  and  assist  in  its  cultivation 
until  it  could  be  advantageously  sold,  and  the  proceeds  applied  to  his 
support,  and  the  support  of  his  wife,  at  such  place  as  they  might 
choose  to  reside.  This  evidence,  however,  is  inadmissable  to  relieve 
her  from  the  obligation  of  the  written  contract.  It  is  in  direct  con- 
flict with  the  express  terms  of  her  written  engagement,  by  which  it  is 
stipulated  that  the  parents,  or  either  of  them,  should  be  at  liberty  to 
reside  in  the  city  of  New  York,  or  elsewhere.  Evidence  of  a  cotem- 
poraneous parol  agreement  is  inadmissable  to  alter  the  terms  of  the 
written  contract. 

However  unfortunate  or  oppressive  may  be  its  terms,  the  parties 
must  abide  by  their  engagement  as  it  is  written. 

The  contract  cannot  be  rescinded,  or  a  re-conveyance  directed,  even 
by  the  consent  of  the  defendants.  The. wife  of  the  complainant  joined 
in  the  conveyance,  and  the  contract  of  the  grantees  is  for  her  main- 
tenance as  well  as  that  of  her  husband.  Her  rights  are  to  be  pro- 
tected. She  is  not  a  party  to  the  suit.  She  does  not  ask,  and  the 
evidence  warrants  the  belief  that  she  does  not  desire  a  dissolution  of 
the  contract.  She  resides  upon  the  farm  with  her  son,  and  is  sup- 
ported by  her  own  labor  and  the  assistance  of  her  children.  The  hus- 
band and  wife  do  not  live  together.  The  complainant  contributes 
nothing  to  her  support.  His  interest  in  the  land  has  been  sold,  and 
to  order  a  re-conveyance  might  strip  both  parties  of  their  means  of 
support,  and  must  of  necessity  be  prejudicial  to  the  rights  and  inter- 
est of  the  wife.  This  consideration  is  decisive  against  rescinding  the 
contract  for  her  support,  and  ordering  a  re-conveyance  of  the  land. 

There  must  be  a  decree  for  a  specific  performance.  Courts  of  equity 
may,  in  the  exercise  of  a  sound  discretion,  refuse  to  decree  the  specific 
performance  of  a  hard  bargain. 

But  this  is  not  a  case  for  the  application  of  the  doctrine,  nor  for  the 
exercise  of  such  discretion.  The  father  conveyed  his  entire  estate 
to  his  children,  upon  their  stipulating  to  provide  for  their  parents  a 
comfortable  support  and  maintenance  suited  to  their  condition, 
wherever  they  or  either  of  them  might  choose  to  reside.  It  is  no 
answer  to  a  prayer  for  a  specific  performance  that  the  property  con- 
veyed is  of  little  value  and  totally  inadequate  lo  the  support  of  the 


216  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Part    1 

parents  in  the  city  of  New  York,  or  elsewhere  than  in  the  country. 
That  was  a  proper  subject  for  consideration  by  the  parties  when  the 
contract  was  entered  into.  But  having  been  made  vokuitarily  and  in 
good  faith,  the  parents  are  entitled  to  their  support  at  the  hands  of 
the  grantees  so  long  as  the  avails  of  the  property  conveyed  or  the 
means  of  the  children  will  suffice  for  that  purpose. 

There  must  be  a  decree  for  a  specific  performance  and  a  reference 
to  a  master  to  ascertain  and  report  what  would  be  a  suitable  pro- 
vision, weekly  or  otherwise,  for  the  comfortable  support  and  mainte- 
nance of  the  complainant,  and  also  of  his  wife,  according  to  the  terms 
and  provisions  of  the  contract. 


ULLSPERGER  v.  MEYER. 

(Supreme  Court  of  Illinois,   1905,  217  111.   262,  75   N.   E.  482.) 

Ricks,  J.  .  .  .  It  is  urged  that  this  contract  lacks  in  the  mate- 
rial element  of  mutuality.  The  particular  ground  upon  which  this 
contention  is  based  is,  that  the  contract  is  signed  by  appellee  only.  It 
is  found  in  option  contracts,  and  unilateral  contracts  generally,  that 
the  rule  here  contended  for  has  no  application ;  that  the  mere  verbal 
acceptance  by  the  second  party  to  the  contract,  or  the  vendee,  or  the 
person  holding  the  option,  with  notice  thereof  to  the  vendor  and  an 
offer  to  perform,  renders  the  contract  mutual  and  binding. 

But  it  is  said  that  in  the  particular  contract  before  us  there  was 
no  future  act  or  option  contemplated,  and  that  the  contract  had  all  its 
validity  at  the  time  it  was  originally  made,  and  that  to  entitle  specific 
performance  of  such  contract  there  must  be  mutuality  of  obligation  and 
remedy.  It  is  difficult  to  understand  upon  what  substantial  ground  the 
difference  in  the  rule  applicable  to  the  two  sets  of  contracts  contended 
for,  if  its  exists,  is  based.  We  are  unable  to  understand  why  the 
mere  written  option  signed  by  the  vendor  shall  bind  him  by  the  verbal 
acceptance  of  the  vendee  and  his  offer  to  perform  be  held  to  be  a 
mutual  and  binding  contract  within  the  Statute  of  Frauds,  and  the 
contract  of  sale  acknowledging  the  receipt  of  part  payment,  signed  by 
the  vendor,  shall  be  held  void  for  want  of  mutuality  upon  the  alleged 
ground  that  the  vendee  has  not  bound  himself  to  perform  by  some 
writing.     We  are  aware  that  there  is  a  diversity  of  opTnion  and  a 


Ch    2)  DEFENSES.  217 

contrariet}'  of  holdings  by  the  courts  of  last  resort  in  the  various 
States  upon  this  subject,  but  a  careful  review  of  the  authorities  leads 
us  to  conclude  that  a  contract  otherwise  clear  and  explicit  is  sufficient 
to  meet  the  requirements  of  the  Statute  of  Frauds  if  signed  by  the 
vendor.  In  the  second  edition  of  the  American  and  English  Encyclo- 
pedia of  Law  (vol.  29,)  the  subject  under  consideration  is  extensively 
discussed  and  the  authorities  touching  it  reviewed,  and  the  conclusion 
there  announced  is  (p.  258)  :  "The  weight  of  authority  is,  that  the 
statute  is  satisfied  if  the  memorandum  be  signed  by  the  parties  sought 
to  be  charged,  alone, — or,  in  other  words,  by  the  party  defendant  in  an 
action  brought  to  enforce  the  contract,  whether  he  be  vendor  or  ven- 
dee. In  the  case  of  a  contract  for  the  sale  of  lands  the  vendor  is  usual- 
ly the  person  to  be  charged,  and  a  memorandum  signed  by  him  alone 
is  valid.  The  party  not  signing  the  memorandum  is  not  bound  unless, 
as  held  by  some  authorities,  he  has  accepted  the  same  as  a  valid,  sub- 
sisting contract.  Want  of  mutuality  arising  from  the  failure  of  both 
parties  to  sign  cannot  be  successfully  pleaded  as  a  defense  by  the  party 
who  did  sign,  at  the  act  of  filing  a  bill  for  specific  performance  binds 
the  plaintiff  and  renders  the  contract  mutual."     .     .     . 

The  case  of  Forthman  v.  Deters,  206  111.  159,  is  a  very  late  case  and 
on  all-fours  with  the  case  at  bar,  and  in  which  the  question  now  be- 
fore us  was  fully  considered,  and  the  conclusion  there  reached  and 
announced  is,  that  where  a  party  accepts  and  adopts  a  written  con- 
tract, even  though  it  is  not  signed  by  him,  he  is  deemed  to  have  as- 
sented to  its  terms  and  conditions  and  is  bound  by  them,  and  that 
where  the  contract  purports  to  be  a  consummated  contract,  the  mere 
acceptance  and  adoption  of  the  writing  establishes  mutuality  and  makes 
the  contract  binding  on  both  parties.  We  deem  that  case  conclusive 
of  the  case  at  bar. 

We  regard  the  rule  as  too  well  established  to  be  open,  that  appellee, 
who  is  the  vendor  having  signed  the  writing  herein  above  set  forth, 
cannot  defeat  performance  upon  the  ground  of  want  of  mutuality, 
based  upon  the  fact,  alone,  that  appellant,  the  vendee,  did  not  sign  the 
same.  The  appellant  had  paid  part  of  the  consideration  and  had  offer- 
ed to  pay  the  whole  of  it  within  a  few  days  of  the  making  of  the  con- 
tract, and  unless  appellee,  by  her  answer,  shall  show  that  to  enforce 
the  same  would  be  inequitable  for  some  reason  other  than  the  mere 
want  of  the  signature  of  appellant  to  the  contract,  we  arc  of  the 
opinion  that  she  should  be  required  to  perform.     .     .     . 


218  SPECIFIC   PERFOEMANCE   OF  CONTRACTS  (Part    1 


THURBER  V.  MEVES. 

(Supreme  Court  of  California,  1897,  119  Cal,  35,  50  Pac.   1063.) 

Van  Fleet,  J.  January  1,  1883,  plaintiff  made  a  contract 
in  writing  with  Otto  Meves,  under  which  Meves  entered  into  the  im- 
mediate possession  of  a  tract  of  about  forty  acres  of  land  belonging  to 
plaintiff,  the  whole  of  which  available  for  the  purpose  Meves  was  to 
clear  up  and  cultivate  to  such  fruit  trees,  grape  vines  and  small  fruit 
plants  as  should  be  furnished  for  the  purpose  by  plaintiff — a  certain 
acreage  to  be  cleared  and  set  out  each  year  during  the  period  of  four 
years ;  and  under  which  contract  Meves  was  to  erect  certain  fences 
and  open  up  a  certain  private  way  or  road,  in  consideration  of  which 
services  plaintiff  was  to  convey  to  Meves  on  January  1,  1888,  the  title 
to  the  north  half  of  said  premises. 

On  March  10,  1884,  Meves  borrowed  of  plaintiff  one  hundred  and  fif- 
ty dollars,  for  which  he  gave  his  promissory  note  payable  two  years 
from  date,  with  interest  at  one  per  cent  per  month,  payable  quarterly, 
and  to  secure  payment  of  which  he  gave  plaintiff  a  writing  which  re- 
ferred to  the  first  mentioned  contract,  and  provided  that  said  contract 
should  be  held  as  security  for  payment  of  the  note,  and  making  the  right 
to  the  conveyance  therein  provided  for,  "dependent  upon  the  payment 
thereof  at  the  time  and  in  the  manner  mentioned  in  said  promissory 
note,  in  addition  to  the  other  conditions  precedent  to  said  conveyance." 

August  14,  1889,  Meves  died,  and  March  10,  1890,  plaintiff  brought 
this  action  against  defendants,  the  heirs  of  Meves,  to  quiet  title  to  the 
north  half  of  the  land  described  in  said  first  mentioned  contract,  then 
held  and  occupied  by  defendants,  and  to  acquire  possession  thereof. 

In  a  cross-complaint  the  defendants  set  up  the  contracts  between 
their  ancestor  and  plaintiff  above  referred  to,  alleged  a  compliance 
with  the  terms  of  the  first,  except  to  a  partial  extent  wherein  com- 
pliance was  prevented  by  certain  acts  of  plaintiff,  a  tender  of  payment 
of  said  note  and  willingness  and  readiness  to  pay  any  amount  found 
due  thereon,  and  prayed  that  plaintiff  be  decreed  to  convey  to  them 
the  portion  of  land  stipulated  in  said  contract.  The  court  below  found 
the  facts  in  all  material  respects  as  alleged  in  the  cross-complaint,  ex- 
cept as  to  the  alleged  tender  of  payment  of  the  note,  and  made  a 


Ch   2)  DEFENSES.  219 

decree  wherein  plaintiff  is  required  to  convey  the  land  to  defendants 
upon  payment  by  the  latter,  within  sixty  days,  of  the  amount  of  said 
note  and  accrued  interest. 

Plaintiff  appeals  from  the  judgment  and  from  an  order  denying 
him  a  new  trial. 

1.  It  is  first  contendefl  that  inasmuch  as  the  principal  contract 
counted  on  by  defendants  was  entered  into  by  plaintiff  solely  in  con- 
sideration of  the  personal  services  of  Meves  to  be  thereafter  rendered, 
which  services  could  not  have  been  compelled  by  plaintiff,  there  was 
presented  at  the  time  the  contract  was  entered  into  such  a  lack  of 
mutuality  as  to  take  the  contract  out  of  the  class  which  is  susceptible 
of  specific  performance  by  either  party.  While  it  is  a  general  and  well- 
established  rule  that  mutuality  of  remedy  is  essential  to 
authorize  the  specific  performance  of  a  contract,  this  rule  does  not 
require  that  such  mutuality  shall  exist  in  all  cases  at  the  inception  of 
the  transaction.  Thus  in  the  case  of  Hall  v.  Center,  40  Cal.  63,  67, 
speaking  of  this  requirement,  it  is  said  by  our  predecessors:  "The 
rule  is  one  which  is  frequently  adverted  to,  is  well  understood,  and 
the  reasons  upon  which  it  is  rested  are  familiar.  But  the  exceptions 
to  its  operation  are  numerous.  Lord  Redesdale,  in  Lawrenson  v. 
Butler,  1  Shoales  &  L.  13,  limits  its  application  to  a  case  'where  nothing 
has  been  done  in  pursuance  of  the  agreement,'  by  which  it  is  to  be 
understood  that  though  an  agreement  may,  at  the  time  it  was  entered 
into,  lack  the  element  of  mutuality,  and  for  that  reason  may  not  be 
then  such  an  agreement  as  equity  would  enforce,  yet  if  the  party 
seeking  relief  has  subsequently,  with  the  knowledge  and  the  express 
or  tacit  consent  of  the  other,  placed  himself  in  such  a  position  that  it 
would  be  a  fraud  for  that  other  to  refuse  to  perform,  equity  will  re- 
lieve." 

The  principles  there  announced  are  sustained  in  the  later  cases  of 
Ballard  v.  Carr,  48  Cal.  74,  and  Howard  v.  Throckmorton,  48  Cal. 
489.  And,  adverting  to  this  element  of  mutuality  and  the  question 
as  to  the  time  when  it  must  exist,  it  is  said  by  Mr.  Waterman :  "The 
rule  as  to  the  time  is  to  be  taken  with  this  qualification,  that  notwith- 
standing the  contract  when  it  is  entered  into  be  incapable  of  specific 
performance  by  one  of  the  parties,  or,  being  enforced  against  him,  yet 
if  the  obligation  to  perform  be  mutual  and  the  obstacle  to  performance 
be  subsequently  overcome,  a  decree  may  then  be  rendered.     If  the 


220  SPECIFIC   PEKPORMANCE    OP  CONTEACTS  (Part    1 

plaintiff  has  performed  his  part  of  the  agreement,  specific  perform- 
ance  may   be   decreed,   aUhough   the   contract,    so    far   as    concerned 

performance  by  the  plaintiff,  was  originally  beyond  the  jurisdiction  of 
the  court ;"  Waterman  on  Specific  Performance,  sec.  199.  The  au- 
thorities cited  by  appellant  are  not  at  variance  with  this  qualification 
of  the  rule. 

And  while  an  obligation  to  perform  personal  services  is  one  of  which 
specific  enforcement  may  not  be  had  (Civ.  Code,  sec  3390),  this  rule 
has  not  the  effect  to  defeat  the  right  to  have  the  specific  benefit  of  an 
enforceable  obligation  entered  into  in  consideration  of  personal  ser- 
vices, where  such  services  have  been  fully  or  substantially  performed. 
(Ballard  v.  Carr,  supra;  Howard  v.  Throckmorton,  supra;  King  v. 
Gildersleeve,  79  Cal.  504,  510.)  In  Howard  v.  Throckmorton,  supra, 
which  like  Ballard  v.  Carr,  supra,  was  an  action  to  enforce  an  obliga- 
tion to  convey  land  in  consideration  of  personal  services  as  an  attorney, 
it  is  said :  "While  it  is  true  as  a  general  proposition  that  a  party  who 
has  contracted  to  perform  services  of  the  character  mentioned  in  the 
contract  in  this  case  cannot  maintain  an  action  for  specific  performance 
while  the  contract  remains  unperformed  on  his  part,  he  is  as  fully  en- 
titled to  maintain  such  action  as  he  would  be  if  the  agreement  on  his 
part  had  been  for  the  payment  of  money."     .     .     . 


WATTS  V.  KELLAR. 

(United  States  Circuit  Court  of  Appeals,  1893,  56  Fed.  1.) 

Caldwell,  D.  J.  .  .  .  By  the  terms  of  this  contract  the  defend- 
ants, in  consideration  that  the  plaintiff  would  pay  $7,000  for  the  lot, 
agreed  to  pay  the  plaintiff  $7,700,  therefor  at  the  expiration  of  one 
year  from  the  date  of  plaintiff's  purchase,  if  the  plaintiff  should  then 
elect  to  sell  the  lot  at  that  price.  The  consideration  for  this  agreement 
is  expressed  in  the  contract,  and  is  sufficient.  An  option  to  sell  land 
is  as  valid  as  an  option  to  buy.  When  one  holding  a  buyer's  option 
makes  his  election  to  purchase,  and  tenders  the  money  according  to  the 
terms  of  the  contract,  it  is  the  duty  of  the  seller  to  accept  the  price, 
and  execute  a  deed  to  the  purchaser  for  the  property ;  and  when  one 
holding  an  option  to  sell  elects  to  make  the  sale,  and  tenders  a  deed, 
it  is  the  duty  of  the  buyer  to  accept  the  deed,  and  pay  the  price.     Such 


Ch    2)  DEFENSES.  221 

contracts  are  perfectly  valid,  and  it  is  now  well  settled  that  a  court  of 
equity  may  decree  a  specific  performance  of  them.     A  suit  for  that 
purpose  is,  of  course,  subject  to  the  general  rule  that  the  specific  per- 
formance of  contracts  for  the  purchase  or  sale  of  land  is  not  a  matter 
of  course,  but  rests  in  the  discretion  of  the  court,  in  view  of  all  the  cir- 
cumstances.    But  the  rules  by  which  the  court  will  be  guided,  in  a 
suit  like  this,  in  decreeing  or  refusing  a  specific  enforcement  are  the 
same  that  they  are  in  other  suits  for  the  specific  enforcement  of  con- 
tracts relating  to  land.     Cases  may  be  found  which  hold  that  such 
contracts  will  not  be  specifically  enforced,  because  the  right  to  a  spe- 
cific enforcement  is  not  mutual.     The  want  of  mutuality  of  right  to  a 
specific  performance  of  a  contract,  which  sometiemes  precludes  its 
enforcement  in  equity,  has  no  application  to  an  option  contract  of  the 
character  we  are  considering.     The  purchaser  of  an  option  to  buy  or 
sell  land  pays  for  the  privilege  of  his  election.     It  is  that  very  privi- 
lege which  the  other  party  to  the  contract  sells.     In  the  absence  of  an 
agreement  to  the  contrary,  each  party  to  a  contract  to  buy  or  sell 
land  may  have  its  specifically  enforced  against  the  other   (Raymond 
v.  Land  &  Water  Co.,  4  C.  C.  A.  89,  10  U.  S.  App.  601,  53  Fed.  Rep. 
883)  ;  but  the  very  purpose  of  an  optional  contract  of  this  nature  is  to 
extinguish  this  mutuality  of  right,  and  vest  in  one  of  the  parties  the 
privilege  of  determining  whether  the  contract  shall  be  vitahzed  and 
enforced.    An  option  to  buy  or  sell  land,  more  than  any  other  form  of 
contract,  contemplates  a  specific  performance  of  its  terms ;  and  it  is 
the  right  to  have  them  specifically  enforced  that  imparts  to  them  their 
usefulness  and  value.     An  option  to  buy  or  sell  a  town  lot  may  be 
valuable  when  the  party  can  have  the  contract  specifically  enforced, 
but,  if  he  cannot  do  this,  and  must  resort  to  an  action  at  law  for  dam- 
ages, his  option  in  most  cases  will  be  of  little  or  no  value.    No  man  of 
any  experience  in  the  law  would  esteem  an  option  on  a  lawsuit  for 
an  uncertain  measure  of  damage  as  of  any  value.  The  modern,  and  we 
think  the  sound,  doctrine  is  that  when  such  contracts  are  free  from 
fraud,  and  are  made  upon  a  sufficient  consideration,  they  impose  upon 
the  maker  an  obligation  to  perform  them  specifically,   which  equity 
will  enforce.     Pom.  Cont.  §   167-169,  and  notes;  Willard  v.  Tayloe, 
8  Wall.  557;  Brown  v.  Slee,  103  U.  vS.  828.     In  the  case  last  cited, 
the  supreme  court  of  the  United  vStates  enforced,  quite  as  a  matter  of 
course,  the  specific  performance  of  a  seller's  option  which  was  in  these 
terms : 


222  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Part    1 

"It  is  further  understood  and  agreed  that,  if  said  executors  desire 
it,  said  Brown  shall,  at  the  expiration  of  five  years  stated  in  said  con- 
tract of  April  25,  1871,  repurchase  the  130  acres  of  land  in  the  city 
of  Des  Moines  at  $25,000.     .     .     ." 

The  opinion  of  the  court  was  delivered  by  Chief  Justice  Waite,  and 
discussed  at  length  the  sufficiency  of  the  executors'  notice  of  their 
election  to  sell,  and  the  question  whether  the  tender  of  the  deed  was 
timely;  but  contains  no  intimation  that  the  want  of  mutuality  in  the 
contract  was  any  impediment  to  its  specific  enforcement.  The  want 
of  mutuality  was  too  obvious  to  be  overlooked,  and  the  fact  that  it 
was  not  adverted  to  shows  that,  in  the  judgment  of  that  court,  the 
right  to  enforce  the  specific  performance  of  such  a  contract  was  too 
well  settled  to  require  or  justify  any  observation.  Viewed  in  any 
light,  the  bill  presented  a  case  of  equitable  cognizance,  and  it  was 
error  to  dismiss  it.     .     .     , 


DRESSEL  V.  JORDAN. 

(Supreme  Court  of  Massachusetts,  1870,  104  Mass.  407.) 

Wells,  J.  .  .  .  This  consideration  leads  to  another  objection 
urged  by  the  defendant,  namely,  that  there  is  a  want  of  such  mutuality 
as  is  requisite  for  an  agreement  entitled  to  specific  enforcement.  So 
far  as  this  objection  rests  upon  the  ground  that  there  was  no  legal 
and  sufficient  agreement  on  the  part  of  the  sellers,  for  any  of  the 
reasons  already  considered,  no  further  discussion  is  necessary.  Beyond 
that,  the  point  of  the  objection  is  that  the  seller  must  have,  at  the 
time  the  agreement  is  made,  such  title  and  capacity  to  convey,  or  such 
means  and  right  to  acquire  them,  as  will  enable  him  to  fulfill  the 
contract  on  his  part;  otherwise  the  court  will  not  hold  the  purchaser 
to  a  specific  performance.  But  we  do  not  so  understand  the  rule. 
On  the  contrary,  if  the  obligation  of  the  contract  be  mutual,  and  the 
seller  is  able,  in  season  to  comply  with  its  requirements  on  his  part, 
to  make  good  the  title  which  he  has  undertaken  to  convey,  we  see 
no  ground  on  which  the  purchaser  ought  to  be  permitted  to  excuse 
himself  from  its  acceptance 


Ch.   2)  DEFENSES.  223 

The  equitable  rule  is  established  by  numerous  authorities,  that  where 
time  is  not  of  the  essence  of  the  contract,  and  is  not  made  material 
by  the  offer  to  fulfill  by  the  other  party,  and  request  for  a  convey- 
ance, the  seller  will  be  allowed  reasonable  time  and  opportunity  to 
perfect  his  title,  however  defective  it  may  have  been  at  the  time  of 
the  agreement.  And  in  all  cases  it  is  sufficient  for  the  seller,  upon  a 
contract  made  in  good  faith,  if  he  is  able  to  make  the  stipulated  title 
at  the  time  when,  by  the  terms  of  his  agreement  or  by  the  equities  of 
the  particular  case,  he  is  required  to  make  the  conveyance,  in  order 
to  entitle  himself  to  the  consideration.     .     .     . 

In  the  present  case,  although  a  fixed  time  was  named  in  the  con- 
tract for  conveyance  of  the  title,  the  defendant  was  himself  at  no 
time  ready  to  receive  it  until  after  the  plaintiffs  had,  by  the  sale  to 
Cram,  enabled  themselves,  by  means  of  a  quitclaim  deed  from  Cram, 
to  transfer  the  whole  title.  The  plaintiffs  were  not  therefore  at  any 
time  in  default,  in  respect  to  the  title  to  this  third  part  of  the  es- 
tate.    .     .     . 


LOGAN  AND  WIFE  v.  BULL. 

(Kentucky  Court  of  Appeals,  1880,  78  Ky.  607.) 

Pryor,  J.  This  action  was  instituted  in  the  Louisville  chancery 
court  on  the  1st  of  December,  1873,  by  the  appellants,  Logan  and 
wife,  against  John  Bull,  for  the  specific  execution  of  a  contract 
evidencing  the  sale  of  a  lot  of  ground  and  the  improvements  on  the 
northeast  corner  of  Fifth  and  Market  streets,  in  the  city  of  Louis- 
ville.    .     .     . 

It  is  further  contended  by  the  appellees  that  a  specific  execution 
of  the  contract  should  be  denied  because  the  title  to  a  part  of  the 
lot  is  in  the  feme  covert,  and  as  the  chancellor  has  no  power  to  com- 
pel her  to  convey,  there  is  such  a  want  of  mutuality  in  the  obligation 
as  to  render  the  contract  invalid. 

The  general  doctrine  is,  that  a  contract  incapable  of  being  enforced 
against  one  party,  that  party  is  equally  incapable  of  enforcing  it  against 
the  other.     (Fry  on  Specific  Performance,  page  198.) 

It  has  often  been  held  under  this  rule,  that  a  party  at  the  time  he 
makes  his   contract,   although   not   invested   with   such    a  title   as   he 


224  SPECIFIC   PEEFOEMANCE   OF  CONTRACTS  (Part    1 

undertakes  to  convey,  may  compel  a  specific  execution  where  time  is 
not  of  the  essence  of  the  contract.  Cases  may  be  found,  and  language 
used  by  some  of  the  elementary  writers  on  the  subject,  conducing  to 
the  conclusion  that,  in  the  absence  of  such  a  title  in  the  party  at  the 
time  of  making  the  contract  as  he  contracts  to  convey,  the  vendee 
may  rescind,  and  a  specific  execution  will  be  denied;  but  the  equi- 
table rule  as  now  settled  by  nearly  all  the  authorities  on  the  subject 
is,  that  when  the  contract  is  required  to  be  performed,  if  the  party 
is  able  to  convey,  and  tenders  his  deed,  the  contract  will  be  enforced, 
although  his  title  was  defective  at  the  date  of  the  contract;  and  if 
not  able  to  convey  at  the  time  of  filing  a  bill  of  rescission,  if  time 
is  not  of  the  essence  of  the  contract,  the  chancellor  will  permit  the 
vendor,  if  he  can  do  so  within  a  reasonable  time,  to  supply  the  defects 
in  his  title,  so  as  to  comply  with  his  contract.  (Dressel  v.  Jordan, 
104  Massachusetts.) 

In  this  case  the  husband  and  wife,  living  at  the  time  in  the  state 
of  Missouri,  authorized  their  agents  in  Louisville,  by  telegraph  and 
by  letter,  to  make  the  sale  to  the  ancestor  of  the  appellees  on  the 
terms  mentioned  in  the  writing.  The  obligation  to  perform  the  con- 
tract was  as  binding  on  Logan  as  on  Bull,  and  the  fact  that  the  title 
to  a  part  of  the  lot  was  in  the  wife,  who  could  not  be  compelled  to 
convey,  is  immaterial.  If  in  a  reasonable  time  Logan  was  ready  to 
make  good  the  title,  and  particularly  when  he  has  not  failed  to  make 
a  title  on  the  demand  of  the  vendee,  the  purchaser  should  be  com- 
pelled to  accept  it.  The  ancestor  of  the  appellees  knew  when  he 
made  this  purchase  that  the  title  to  a  part  of  the  lot  was  in  the  wife, 
and  that  the  chancellor  could  not  coerce  a  conveyance,  and  whether 
he  possessed  this  knowledge  or  not,  the  obligation  on  the  husband  to 
convey  was  as  binding  on  him  as  the  obligation  on  the  vendee  to  pay 
the  money. 

The  ancient  practice  in  equity  was  to  decree  the  husband  to  per- 
form his  contract  in  such  a  case  where,  as  Lord  Eldon  says,  it  was 
usually  impossible  for  him  to  perform.  The  modern  rule  on  the 
subject  is  to  adjudge  a  specific  performance,  although  the  title  may 
have  been  in  the  wife  when  the  contract  was  made  with  the  husband, 
if  the  latter  is  ready  to  comply  by  tendering  such  a  conveyance  as 
will  pass  the  title.  If  the  wife  consents  to  convey,  and  does  convey, 
the  vendee  has  no  right  to  complain.     .     .     . 


Ch.  3)  WASTE.  225 


CHAPTER  III.  SPECIFIC  REPARATION  AND  PREVENTION 

OF  TORTS. 


SECTION  I.  WASTE. 


OHIO  OIL  CO.  V.  DAUGHETEE. 

(Supreme  Court  of  Illinois,  1909,  240  111.  361,  88  N.  E.  818.) 

DuNN^  J.  The  appellee  N.  P.  Daughetee  is  the  owner  in  fee  of 
190  acres  of  land  in  Clark  county.  His  sister,  Sydney  A.  Stephenson, 
died  in  1895,  owning  60  acres  adjoining  it  on  the  south,  which  by  her 
will  she  devised  as  follows : 

"I  give  and  devise  and  bequeath  to  Nathaniel  P.  Daughetee,  trustee, 
in  trust,  and  to  his  successors  forever,  all  my  estate,  real,  personal 
and  mixed,  of  whatever  kind  or  nature  soever,  of  which  I  may  die 
seized  or  possessed,  to  have  and  to  hold,  manage,  rent,  lease  and  con- 
trol, in  trust,  for  the  uses  and  purposes  following:  To  pay  the  ex- 
penses of  such  trust  and  for  necessary  repairs  and  taxes,  and  to  pay 
over  the  annual  proceeds  therefrom  to  my  nephew,  Rhinehart  C. 
Daughetee,  for  and  during  the  natural  life  of  him,  the  said  Rhine- 
hart  C.  Daughetee,  with  remainder  over  to  the  heirs  of  the  body  of 
said  Rhinehart  C.  Daughetee  upon  his  death,  provided  he  die  leaving 
a  child  or  children  or  descendants  of  child  or  children,  equally,  share 
and  share  alike,  to  them  and  their  heirs  forever.  In  the  event  of 
the  death  of  said  Rhinehart  C.  Daughetee  without  issue  of  his  body 
then  surviving,  then  and  in  that  event  I  give,  devise  and  bequeath 
all  the  rest,  residue  and  remainder  of  my  estate,  real,  personal  and 
mixed,  to  my  brother,  Nathaniel  P.  Daughetee,  and  his  heirs  for- 
ever." 

On  June  3,  1904,  N.  P.  Daughetee  entered  info  a  written  contract 
with  a  co-partnership  doing  business  under  the   name  of    Iloblitzell 

1  Eq.— 15. 


226'  REPAEATIOlSr    AND    PEEVENTION   OF   TORTS.  (Part    1 

&  Co.,  whereby  he  granted  to  them  all  the  oil  and  gas  in  and  under 
both  his  own  190  acres  and  the  60  acres  held  by  him  in  trust,  to- 
gether with  the  right  to  enter  thereon  at  all  times  for  the  purpose 
of  drilling  and  operating  for  gas  and  oil,  and  to  erect  and  maintain 
all  buildings  and  structures  and  lay  all  pipes  necessary  for  the  pro- 
duction and  transportation  of  oil  and  gas,  with  a  right  of  way  over 
and  across  said  premises  to  the  place  of  operation,  and  the  exclusive 
right  to  remove  any  machinery  or  fixtures  placed  on  said  premises, 
doing  the  least  possible  damage  to  said  premises,  and  with  the 
right  reserved  to  the  grantor  to  use  the  premises  for  tillage  and  for 
all  other  purposes  not  inconsistent  with  the  object  of  the  lease.  The 
contract  was  for  the  term  of  five  years  and  as  much  longer  as  gas 
or  oil  was  found  in  paying  quantities.     .     .     . 

N.  P.  Daughetee  had  possession  and  control  of  the  60  acres  under 
his  sister's  will  as  trustee.  He  had  no  present  beneficial  interest  in 
the  land.  His  only  authority  to  contract  in  regard  to  its  possession 
or  use  was  derived  from  the  will,  which  gave  him  the  right  to  manage, 
rent,  lease  and  control  the  land,  but  no  authority  to  sell  or  mortgage 
it  or  any  part  of  it.  The  power  of  control  and  management  given 
him  was,  during  Rhinehart  C.  Daughetee's  lifetime,  for  the  purpose 
of  making  necessary  repairs,  paying  taxes  and  expenses  and  paying 
the  net  annual  proceeds  to  him.  The  only  management  and  con- 
trol contemplated  was  that  which  had  to  do  with  the  annual  pro- 
ceeds of  the  land.  The  authority  of  the  trustee  was  to  grant  ordinary 
farming  leases  in  accordance  with  the  ordinary  terms  of  the  neighbor- 
hood, but  not  unusual  leases  or  leases  of  unopened  mines.  2  Perry 
on  Trusts,  sec.  528;  Clegg  v.  Royland,  L.  R.  2  Eq.  160. 

Granting  that  the  trustee  held  the  title  in  fee,  he  held  it  for  the 
benefit  of  the  remainder-man  as  well  as  the  life  tenant,  and  had  no 
right  to  waste  the  estate  for  the  benefit  of  the  life  tenant  at  the 
expense  of  the  remainder-man.  It  is  a  well  established  rule  of  law 
that  the  opening  of  new  mines  upon  land  by  a  life  tenant  amounts 
to  waste.  (Priddy  v.  Griffith,  150  111.  560.)  The  same  rule  applies 
to  oil  wells.  Oil  is  a  mineral  and  part  of  the  realty.  Owing  to  its 
fugitive  nature,  a  grant  of  oil  vmder  the  ground  is  a  grant,  not  of 
the  oil  in  place  in  the  earth,  but  of  such  oil  as  the  grantee  may  find 
there  and  save.  The  right  to  go  upon  the  land  and  remove  all  the 
oil,  if  of  unlimited  duration,  is  a  freehold  estate,   (Watford  Oil  and 


Ch.  3)  WASTE.  227 

Gas  Co.  V.  Shipman,  233  111.  9;  Bruner  v.  Hicks,  230  id.  536;)  and 
a  grant  of  such  right  is,  therefore,  in  legal  effect,  a  sale  of  a  portion 
of  the  land.  Blakely  v.  Marshall,  174  Pa.  425;  Stoughton's  Appeal, 
88  Pa.  198. 

There  were  no  oil  wells  on  the  land  at  the  time  of  the  testatrix's 
death.  A  tenant  for  life,  under  such  circumstances,  would  have  had 
no  right  to  operate  for  oil  on  the  land.  (Marshall  v.  Mellow,  179 
Pa.  371.)  Neither  could  the  trustee  operate  for  his  benefit.  The 
taking  out  of  the  oil  would  be  waste,  which  a  court  of  equity  will 
enjoin.     Williamson  v.  Jones,  43  W.  Va.  562. 

Counsel  for  appellant  insist  that  the  remainder  to  Homer  Daugh(;tce 
is  contingent ;  that  he  has  no  estate  in  the  land  but  a  mere  expectancy, 
which  will  not  enable  him  to  maintain  the  suit.  On  the  other  hand, 
it  is  contended  in  behalf  of  appellees  that  the  remainder  is  vested 
and  the  court  so  found.  It  is  not  essential  to  a  decision  of  the  case 
to  determine  whether  the  interest  of  Homer  Daughetee  is  vested  or. 
contingent.  A  contingent  remainder-man  has  no  certain  estate  in 
the  land,  and  therefore  no  standing  to  maintain  an  action  at  law 
for  past  waste  or  a  bill  for  an  account  therefor;  but,  though  his  claim 
depends  upon  a  contingent  event,  he  may  maintain  a  bill  against  a 
life  tenant  to  enjoin  future  waste,  because  otherwise  no  remedy 
exists  for  the  protection  of  the  interest  in  remainder  but  the  life 
tenant  without  a  semblance  of  right  may  despoil  the  inheritance  ^v•ith 
impunity.  The  bill,  in  such  case,  may  be  maintained  for  the  protec- 
tion of  the  inheritance,  which  is  certain  though  the  person  on  whoiu 
it  may  fall  is  uncertain.  (Brashear  v.  Macey,  3  J.  J.  Marsh.  93; 
Cannon  v.  Berry,  59  Miss.  289;  Coward  v.  Myers,  99  N.  C.  198; 
Lewisburg  University  v.  Tucker,  31  W.  Va.  621.)  The  acts  which 
the  crossbill  seeks  to  enjoin  and  which  the  appellant  claims  the 
right  to  commit,  clearly  amount  to  waste  against  the  remainder-man. 
The  trustee  could  not  authorize  them.  The  case  is  different  from 
those  of  Fifer  v.  Allen,  228  111.  507,  and  Gannon  v.  Peterson,  193  id. 
372.  The  defendants  sought  to  be  enjoined  in  those  cases  were  owners 
of  the  fee,  determinable,  it  is  true,  but  still  having  all  the  rights  of 
tenats  in  fee  simple  until  the  determination  of  their  estates.  The  acts 
sought  to  be  enjoined  were  such  as  they  might  rightfully  do  as  owners 
of  the  fee.  The  interests  sought  to  be  protected  were  mere  expec- 
tancies,  which   might  never  have   any   existence.     Here   the   interest 


228  EEPAKATION    AND    PREVENTION   OF   TORTS.  (Part    1 

sought  to  be  protected  is  certain  to  accrue  and  the  acts  sought  to  be 
enjoined  are  without  color  of  right  of  any  kind.  This  case  is  within 
the  requirements  suggested  in  the  cases  just  mentioned,  the  contin- 
gency being  certain  to  happen  and  the  waste  threatened  amounting  to 
a  wanton  and  unconscientious  abuse  of  right.     .     .     . 


TAYLOR  V.  ADAMS. 

(Missouri  Court  of  Appeals,  1902,  93  Mo.  App.  277.) 

Ellison,  J.  This  action  is  for  waste  alleged  to  have  been  committed 
by  defendant  on  the  lands  described  in  plaintiffs'  petition.  At  the 
close  of  plaintifif's  case  the  trial  court  sustained  a  demurrer  to  the 
evidence.     The  question  involved  arises  out  of  the  following  deed: 

This  deed  conveyed  an  estate  for  life  to  Elenora  Taylor,  for  though 
she  had  also  the  power  of  appointment  over  the  remainder,  that  did 
not  enlarge  the  estate  especially  limited.  Evans  v.  Folks,  135  Mo. 
397.  Elenora  is  alive,  and  at  the  time  of  the  trial  was  fifty  years  old. 
Her  life  estate  was  sold  at  sheriff's  sale  and  defendant  became  the 
purchaser.  He  thereby  became  tenant  for  the  life  of  Elenora,  and 
as  such  he  is  charged  by  plaintiffs,  who  are  Elenora's  children,  with 
waste  of  the  estate,  and  damages  are  asked.  The  plaintiffs  base  their 
claim  of  right  to  sue  on  the  idea  that  they  are  owners  of  the  estate 
in  remainder.  Their  right  to  sue  depends  on  whether  their  estate  in 
remainder  is  vested  or  contingent.  If  contingent,  they  have  no 
standing  in  law  for  in  such  event  it  can  not  be  known  in  advace  of 
the  happening  of  the  contingency,  that  they  have  been  damaged  by 
the  waste.  If  they  should  recover  damages,  and  then  the  contingency 
upon  which  their  estate  depends  not  happen,  they  would  be  paid  for 
what  they  had  not  lost.  And  so  the  law  is  that  a  contingent  remainder- 
man has  no  action  for  waste  (Sager  v.  Galloway,  113  Pa.  St.  500; 
Hunt  V.  Hall,  Z7  Maine  363),  though  in  equity  they  could  perhaps 
have  injunction  to  prevent  future  waste  (Cannon  v.  Barry,  59  Miss. 
289,  302;  University  v.  Tucker,  31  West  Va.  621.)  The  distinction 
of  the  contingent  remainderman's  right  at  law  in  damages  and  in 
equity  to  an  injunction  has  good  reason  in  its  support.     For  while 


Ch.  3)  WASTE.  220 

he  will  not  be  allowed  to  recover  damages  for  that  which  may  not 
be  his,  he  should  be  allowed  to  prevent  the  destruction  of  that  which 
may  become  his. 


MORRIS  V.  MORRIS. 

(In  Chancery,  1853,  3  De  G.  &  J.  323.) 

This  was  an  appeal  by  the  plaintiffs  from  an  order  of  Vice-Chan- 
cellor  Stuart  dismissing  the  bill  which  was  filed  to  obtain,  among 
other  things,  compensation  out  of  the  estate  of  a  deceased  tenant  for 
life  for  equitable  waste  in  pulling  down  a  mansion-house  called 
Clasemont,  in  Glamorganshire. 

In  June  1819,  Sir  John  Morris,  the  father,  settled  the  barony  of 
Sketty,  in  Glamorganshire,  and  other  estates,  on  himself  for  life,  with 
remainder  to  the  use  of  trustees  for  1,000  years,  upon  trusts  for 
raising  money  to  pay  off  certain  charges,  and  subject  thereto  to  the 
use  of  trustees  dviring  the  life  of  Sir  John  Morris  the  son,  without 
impeachment  of  waste  (provided  the  same  should  be  committed  or 
suffered  with  the  privity  or  assent  of  Sir  J.  Morris,  the  son),  upon 
trust  to  preserve  contingent  remainders,  and  to  permit  Sir  J.  Morris, 
the  son,  to  receive  the  rents  during  his  life,  with  remainder  to  the 
use  of  Sir  J.  Armine  Morris,  for  life,  without  impeachment  of  waste, 
with  remainder  to  the  use  of  the  first  and  other  sons  of  Sir  J.  A. 
Morris,  successively  in  tail  male,  with  ultimate  reversion  to  the  settlor 
in  fee. 

The  settlor  died  soon  after  the  date  of  the  settlement,  and  Sir  J. 
Morris,  the  son,  entered  into  possession.  At  this  time  there  was  upon 
the  settled  estates  the  mansion-house  of  Clasemont.  This  house  had, 
for  various  reasons,  become  undesirable  as  a  residence,  and  the 
settlor  had,  for  some  years  before  his  death,  shut  it  up,  and  had  made 
some  preparations  for  building  another  at  Sketty,  upon  part  of  the 
settled  estates.  In  1820,  at  which  time  Sir  J.  A.  Morris,  the  grand- 
son of  the  settlor,  was  about  nine  years  old.  Sir  J.  Morris,  the  son, 
pulled  down  the  mansion  at  Clasemont,  and  soon  afterwards  com- 
pleted the  new  one  at  Sketty,  which  was  much  superior  to  the  old 
one.     It  was  proved  in  the  cause,  as  satisfactorily  as  such  a   fact 


230  REPARATION    AND    PEEVENTION   OF   TORTS.  (Part    1 

could  be  expected  to  be  proved  at  such  a  distance  of  time,  that  the 
bulk  of  the  materials  of  the  old  house  had  been  employed  in  erecting 
the  new  one,  and  there  was  no  evidence  to  show  that  any  part  of 
them  had  been  sold. 

In  1847,  Sir  J.  A.  Morris  obtained  an  injunction  to  restrain  Sir 
J.  Morris,  the  son,  from  cutting  down  ornamental  timber  in  the 
grounds  at  Clasemont,  and  the  order  granting  this  injunction  was 
affirmed  by  Lord  Cottenham. 

Sir  J.  Morris,  the  son,  died  in  1855,  leaving  a  will,  by  which  he 
appointed  his  widow.  Lady  Morris,  his  executrix. 

The  present  bill  was  filed  by  Sir  J.  A.  Morris  and  his  eldest  son 
against  Lady  Morris,  asking,  among  other  things,  that  it  might  be 
declared  that  the  pulling  down  the  mansion-house  at  Clasemont  was 
an  act  of  equitable  waste,  and  that  an  account  might  be  taken  of  the 
application  of  the  materials,  and  of  the  profits  received  by  Sir  John 
Morris,  the  son,  from  them,  and  that  the  amount  of  compensation 
to  which  the  plaintiffs  might  be  entitled  in  respect  of  such  waste 
might  be  paid  into  Court. 

Vice  Chancellor  Stuart  dismissed  the  bill  without  costs,  and  the 
plaintiffs  appealed.  The  bill  also  raised  another  question,  but  as  the 
defendant,  upon  the  hearing  of  the  appeal,  did  not  resist  a  decree 
upon  that  part  of  the  case,  and  no  argument  took  place  upon  the 
point,  it  is  not  thought  necessary  to  notice  it  further.     .     .     . 

Th]J  Lord  Justice;  Knight  Bruce.  This  is  not  a  question  of  in 
junction,  for  the  act  of  which  complaint  is  made  was  done  more  than 
thirty  years  ago.  It  is  a  mere  question  of  equitable  debt,  in  consider- 
ing which  we  must  look  to  the  particular  circumstances  of  the  case. 
That  it  was  a  reasonable,  a  judicious,  and  a  beneficial  thing  to  pull 
down  the  house  at  Clasemont,  and  to  use  the  materials,  so  far  as 
they  could  be  used,  for  building  the  mansion  at  Sketty,  is  perfectly 
clear;  but  I  agree  with  Mr.  Malins,  that  an  act  may  be  reasonable, 
may  be  judicious,  may  be  beneficial  to  all  the  persons  interested  in 
a  settled  property,  and  yet  it  may  be  an  act  prohibited  to  a  tenant 
for  life,  if  a  person  interested  in  remainder  chooses  to  interfere.  I 
do  not  put  the  case,  therefore,  merely  on  the  reasonableness,  on  the 
judiciousness,  and  on  the  beneficial  nature  of  what  was  done,  but  they 
are  ingredients  in  it.  The  estate  has  been  benefited  by  what  has  been 
done,  and  the  plaintiffs  are  receiving  that  benefit.  Still,  if  it  had 
been  shown,  or  were  in  any  degree  likely,  that  any  part  of  the  materials 


Ch.  3)  WASTE.  231 

of  the  house  had  been  sold,  probably,  notwithstanding  the  much  larger 
expenditure  on  the  construction  of  the  new  mansion-house,  the  assets 
of  the  second  baronet  would  have  been  held  liable  to  account.  Here 
however,  there  is  no  evidence  that  any  part  of  the  materials  was  sold, 
and  the  probability  is,  that  no  part  or  no  substantial  part  of  them  was 
sold.  There  is  evidence  that  most  of  the  materials,  probably  all  the 
materials  that  were  of  any  value,  were  applied  in  building  the  present 
mansion-house  in  a  proper  position  upon  the  estate.  In  my  judgment 
it  would  be  unjust,  and  would  be  stretching  a  rule  beyond  its  reason, 
to  make  the  tenant  for  life  account  for  the  materials  of  a  mansion- 
house  on  the  estate,  wisely  pulled  down,  when  the  materials  have  been 
so  applied  in  rebuilding.  I  am  of  opinion,  therefore,  that  in  the  cir- 
cumstances of  the  present  case,  there  is  no  ground  for  directing  an 
account  of  equitable  waste,  and  the  bill  ought  to  remain  dismissed,  as 
far  as  it  relates  to  the  materials  of  the  Clasemont  house.     .     . 


KING  V.  SMITH. 

(In   Chancery,   1843,  2  Hare  239.) 

Vice-Chancellor.  The  cases  decide  that  a  mortgagee  out  of  pos- 
session is  not  of  course  entitled  to  an  injunction  to  restrain  the  mort- 
gagor from  cutting  timber  on  the  mortgaged  property.  If  the  se- 
curity is  sufficient,  the  court  will  not  grant  an  injunction  merely  be- 
cause the  mortgagor  cuts,  or  threatens  to  cut,  timber.  There  must  be 
a  special  case  made  out  before  this  court  will  interpose.  The  dif- 
ficulty I  feel  is  in  discovering  what  is  meant  by  a  "stifficient  security." 
Suppose  the  mortgage  debt,  with  all  the  expenses,  to  be  £1,000,  and 
the  property  to  be  worth  £1,000  that  is,  in  one  sense,  a  sufficient  se- 
curity; but  no  mortgagee,  wdio  is  well  advised,  would  lend  his  money, 
unless  the  mortgaged  property  was  worth  one-third  more  than  the 
amount  lent  at  the  time  of  the  mortgage.  If  the  property  consisted 
of  houses,  which  are  subject  to  many  casualties  to  wliich  land  is 
not  liable,  the  mortgagee  would  probably  require  more.  It  is  rather 
a  question  of  prudence  than  of  actual  value.  I  think  tin-  (|uestion 
which  must  be  tried  is  whether  the  property  the  mortgagee  takes  as  a 
security,   is   sufficient    in    this   sense, — that    the    security    is    worth    so 


-32  EEPARATION    AND    PREVENTION   OF    TOETS.  (Part    1 

much  more  than  the  money  advanced, — that  the  act  of  cutting  timber 
is  not  to  be  considered  as  substantially  impairing  the  value,  which  was 
the  basis  of  the  contract  between  the  parties  at  the  time  it  was  entered 
into.  I  have  read  the  affidavit,  and  I  cannot  find  that  either  the  rental 
or  income  of  the  property  appears;  but  it  seems  that  the  substantial 
part  of  it  consists  of  houses,  which  might  make  it  a  more  serious 
question,  whether  the  court  should  permit  the  mortgagor  to  cut  the 
timber.  The  supplemental  bill,  which  states  the  circumstances  with 
respect  to  the  timber,  and  prays  the  injunction,  contains  no  case  with 
reference  to  the  insufficiency  of  value,  nor  does  the  plaintiff,  by  his 
affidavit,  make  any  such  case.  The  bill  and  affidavit  appear  to  pro- 
ceed on  the  supposition  that  the  mortgagor  has  no  right  to  cut  the 
timber  under  any  circumstances.  In  the  valuation  which  is  attempted 
to  be  shown,  I  am  not  told  the  quantity  of  the  land,  or  the  rental; 
nor  can  I  discover  of  what  class  the  houses  are,  or  whether  they  are 
tenanted  or  not,  or  what  is  the  nature  of  the  property  generally. 

It  is  stated,  on  the  Defendant's  affidavits,  that  he  did  not  cut  any 
of  the  trees  with  intention  of  injuring  the  estate  but  on  the  contrary, 
he  did  it  in  the  due  and  proper  course  of  husbandry  and  management. 
What  is  meant  by  felling  twenty-one  large  elm  trees  in  due  course  of 
husbandry,  I  cannot  comprehend.  It  is  obvious,  that  the  Defendant  is 
using  language,  of  which  he  does  not  know  the  effect.  There  being, 
however,  no  abstract  right  on  the  part  of  a  mortgagee  to  say  that  the 
mortgagor  shall  not  cut  timber,  I  am  satisfied  that  there  must  be  clearer 
evidence  of  the  value  before  me,  or  I  cannot  grant  the  injunction. 

Let  the  motion  stand  over,  with  liberty  to  apply.  If  the  Defendant 
proceeds  to  cut  more  timber,  the  Plaintiff  can  renew  his  application, 
and  bring  before  me  a  case  upon  which  I  can  adjudicate,  and  then 
the  costs  of  this  motion  will  be  disposed  of.  I  should  be  very  re- 
luctant to  decide  it  without  knowing  what  is  the  actual  value  of  the 
security  which  has  been  accepted  by  the  mortgagee,  or  whether  he  is 
really  secured  or  not. 


MURRAY  V.  HAVERTY. 
(Supreme  Court  of  Illinois,  1873,  70  111.  318.) 

ScoTT,   J.     It   is   not   controverted   defendants   dug   and   removed 
large  quantities  of  coal  from  the  premises  described  in  the  declaration, 


Cli.  3)  WASTE.  233 

and  hence  the  principal  question  is,  whether  they  can  justify  under 
the  hcense  offered  in  evidence. 

The  land  upon  which  the  alleged  trespasses  were  committed  was 
owned,  at  the  time,  by  tenants  in  common.  It  was  subsequently 
divided,  and  the  east  half  set  off  to  plaintiff's,  for  whose  use  this 
suit  was  brought.  Prior  to  the  entry  of  defendants  upon  the  premises, 
they  had  entered  into  an  agreement  with  Peter  Howard,  who  was  a 
tenant  in  common  with  plaintiffs'  by  which  they  obtained  the  privilege 
to  enter  and  construct  a  drain  across  the  premises,  but  below  the 
vein  of  coal.  It  was  to  be  for  their  own  benefit,  and  for  the  privilege 
secured  they  were  to  pay  $200. 

The  construction  of  the  drain  would  necessarily  require  the  excava- 
tion and  removal  of  large  quantities  of  coal,  for  which  they  agreed 
to  pay  at  the  rate  of  two  cents  per  bushel. 

It  is  insisted,  this  license  is  a  bar  to  an  action  of  trespass  for  any- 
thing done  by  defendants  in  the  execution  of  the  contract.     .     .     . 

Counsel,  however,  maintain  that  defendants  can  defend  against  the 
alleged  trespasses,  under  a  license  obtained  from  one  of  the  tenants 
in  common.  Waiving  any  technical  objection  that  might  be  urged 
against  the  form  of  the  plea,  under  this  view  of  the  law,  we  do  not 
think  the  proposition  assumed  can  be  sustained,  either  upon  reason 
or  authority. 

The  common  law  doctrine  is,  tenants  in  common  are  seized  of  each 
and  every  part  of  the  estate,  but  it  is  not  in  the  power  of  one  to  con- 
vey the  whole  of  the  estate,  or  the  whole  of  a  distinct  portion,  or  give 
a  valid  release  for  injuries  done  thereto.  It  has  most  generally  been 
ruled  that,  as  against  the  other  co-tenants,  such  a  deed  is  inoperative 
and  void.  Marshall  v.  Trumbull,  28  Conn.  183;  Hutchinson  v.  Chorr, 
39  Maine,  513 ;  4  Kent's  Com.  368. 

No  principle  is  better  settled,  than  that  one  tenant  in  common  can 
not  lawfully  commit  waste  or  destroy  the  common  property,  or  do 
any  act  that  will  work  a  permanent  injury  to  the  inheritance.  Our 
statute  has  authorized  one  tenant  to  maintain  trespass  or  trover  against 
his  co-tenant,  who  shall  take  away,  destroy,  lessen  in  value  or  other- 
wise injure  the  common  property.  Mining  coal  or  excavating  and 
removing  earth,  would  tend  to  injure,  destroy  and  lessen  in  value  the 
estate.  Notwithstanding  the  fact,  in  contemplation  of  law,  tenants  in 
common  are  all  seized  of  each  and  every  part  of  the  estate,  still,  neither 


234  KEPAKATION    AND    PEEVENTION   OF   TORTS.  (Part    1 

one  is  permitted  with  impunity  to  do  acts  deemed  pre  judical  or  de- 
structive of  the  interests  of  the  other  co-tenants.  If  a  tenant  in  common 
can  not  himself  lawfully  dig  and  remove  the  soil  or  coal  or  other 
valuable  material  beneath  the  surface,  that  would  tend  permanently  to 
lessen  the  value  of  the  estate,  how  can  he  grant  that  right  to  a  stranger? 
Upon  principle,  the  licensee  can  take  no  better  title  or  higher  authority 
than  the  licensor  himself  possessed.  The  law  would  not  permit  Peter 
Howard  to  enter  upon  the  common  property  and  remove  from  thence 
the  coal  deposits,  which  must  constitute  the  real  value  of  the  estate. 
Hence  it  follows,  his  warrant  or  license  to  a  stranger  would  afford 
no  answer  to  an  action  of  trespass  brought  by  his  co-tenant.     .     .     . 


UPPINCOTT  V.  BARTON. 

(New  Jersey   Court  of   Chancery,   1886,   42   N.   J.   Eq.   272,   10   Atl.   884.) 

Bird,  V.  C.  This  bill  is  filed  by  the  executor  of  Ann  H. 
Pancoast,  deceased,  to  recover  the  value  of  trees  cut  by  her  husband 
David  C.  Pancoast,  who  continued  in  possession  as  tenant  by  the  curt- 
esy of  her  lands  after  her  death.  The  defendant  against  whom  the 
suit  is  instituted,  are  the  executors  of  the  tenant  for  life.  It  is  claim- 
ed that  this  suit  may  be  maintained  in  this  court  for  the  waste  com- 
mited,  on  the  ground  of  equitable  conversion,  and  upon  the  ground 
of  injustice  to  Clement  G.  Lippincott,  one  of  the  grandsons  of  David 
C.  Pancoast,  by  vdiose  will  he  has  but  $100  bequeathed  him,  while  by 
the  will  of  Ann  H.  Pancoast  he  has  an  equal  interest  with  the  other 

legatees. 

Neither  of  these  alleged  grounds  brings  the  case  within  the  jurisdic- 
tion of  this  court.  I  have  examined  a  number  of  authorities,  and  none 
of  them  goes  so  far  as  to  sustain  the  complamant's  insistment. 

In  Ware  v.  Ware,  2  Hal.  Ch.  117,  the  doctrine,  which  is  expressed 
in  all  the  other  authorities,  is  that  an  account  for  waste  done  is  only 
incidental  to  relief  by  injunction  against  further  waste.  1  Lead.  Cas. 
in  Eq.  1024;  Jesus  College  v.  Bloome,  3  Atk.  262;  Winship  v.  Pitts, 
3  Paige  259;  Story's  Eq.  §§  616,  518. 

From  these  and  other  cases  it  appears  that  this  court  only  has  juris- 
diction to  compel  an  account  as  incidental  to  the  right  of  an  injunction 


Ch.  3)  WASTE.  235 

to  stay  the  commission  of  further  waste,  and  that  only  in  order  to 
prevent  a  multiplicity  of  suits.  Grierson  v.  Eyre,  9  \^es.  341,  346; 
Watson  V.  Hunter,  5  Johns.  Ch.  169;  1  Addison  on  Torts  319. 

Nor  can  I  conceive  of  any  principle  upon  which  this  complainant  can 
stand  in  this  court  for  the  recovery  of  these  moneys.  If  he  is  en- 
titled to  them  he  can  recover  them  by  an  action  at  law  for  money  had 
and  received,  or  for  the  trespass  in  cutting,  or  trover  in  converting. 
Rev.  p.  396,  §  5. 


LANSDOWNE  V.  LANSDOWNE. 

(In  Chancery,  1815,  1  Maddock,  116.) 

Thk  Vice-ChancdIvIvOR  (Sir  Thomas  Plume;r).  Upon  this  demurr- 
er two  points  are  to  be  considered:  1st.  How  the  case  stood  as  to  the 
deceased  marquis?  2ndly.  How  the  case  stands  as  to  his  represent- 
atives? The  late  marquis  was  tenant  for  life,  without  impeachment 
of  waste  and  as  such  had  a  right  at  law  to  cut  timber  on  the  estate,  and 
had  a  property  in  the  trees,  but  having  abused  that  power  by  cutting 
ornamental  trees,  and  trees  not  ripe  for  cutting  a  Court  of  Equity 
says  he  shall  not  do  these  things  with  impunity,  but  interposes  to  re- 
strain the  legal  right ;  and  equity  not  only  restrains  him  from  doing 
further  waste,  but  directs  an  account  of  the  waste  done,  and  will  not 
suffer  the  individual  to  pocket  the  produce  of  the  wrong,  but  directs 
the  money  produced  by  such  waste  to  be  laid  up  for  the  benefit  of 
those  who  succeed  to  the  estate.     .     .     . 

What  is  said  in  Jesus  Coll.  and  Bloom,  as  to  not  entertaining  a  bill 
after  the  estate  of  the  tenant  for  life  is  determined,  applies  only  to  case? 
where  legal  waste  has  been  committed  and  where  the  party  is  liable  at 
law  in  respect  of  the  waste  committed ;  but  here  it  was  equitable  waste, 
as  to  which  a  Court  of  law  gives  no  remedy.  Lord  Hardwicke,  in 
that  case,  says,  "The  party  ought  to  be  sent  to  law ;"  which  shews  he 
was  alluding  to  legal  waste.  The  party  had  for  such  waste  a  remedy 
under  the  statute  of  Marlbridge,  (52  Henry  3,  c.  23),  or  might  have 
brought  an  action  of  trover,  but  the  Court  never  sends  a  party  to  law 
in  cases  of  equitable  waste,  they  being  exclusively  of  equitable  cog- 
nizance.   As  against  the  late  marquis,  therefore,  a  bill  might  have  been 


236  REPAEATION    AND    PEEVENTIOK   OF    TORTS.  (Part    1 

filed  though  no  injunction  were  prayed.  This  Court  will  not  permit 
a  man  to  commit  equitable  waste,  and  retain  the  produce  of  the 
injury,  which  is  recoverable  in  no  other  Court.  Relief  is  given  for 
the  benefit  of  those  who  come  after.  The  case,  therefore,  of  Jesus 
College  and  Bloom  is  distinguishable  from  the  present.  In  Garth  and 
Cotton,  Lord  Hardwicke,  alluding  to  his  decision  in  that  case,  says : 
"It  affords  no  conclusive  argument  that  a  bill  for  an  account  of  waste 
cannot  be  maintained  without  praying  an  injunction."  (1  Dick.  211). 
The  marquis  died,  after  having  sold  and  converted  to  his  use  the  money 
produced  by  his  wrongful  act ;  and  upon  general  principles,  independent 
of  decision,  the  assets  ought  to  be  liable  to  pay  in  respect  of  his  con- 
duct, such  assets  having  been  augmented  by  it.       ... 

It  has  been  argued  that,  as  when  legal  waste  is  committed,  and  there 
are  no  persons  in  being,  or  appearing,  who  could  authorize  it,  or  bring 
an  action  in  respect  of  the  waste,  the  wrong  is  without  remedy;  so 
here,  there  being  no  person  in  esse,  or  appearing,  when  the  waste 
was  committed,  who  could  authorize  it,  a  bill  will  not  lie  in  respect  of 
such  waste ;  but  it  signifies  not  whether  such  person  were  in  esse  or  not, 
for  waste  of  this  description  could  not  be  authorized — such  destruction 
cannot  be  authorized — the  Court  says  it  shall  not  be  done.  The  prod- 
uce of  the  waste  is  laid  up  for  the  benefit  of  the  contingent  remain- 
der men.  (Williams  v.  Duke  of  Bolton,  mentioned  in  Mr.  Cox's 
note  to  Bewick  v.  Whitfield,  3  P.  Wms.  268.)  To  adopt  such  an 
analogy  to  the  law,  in  a  case  where  relief  is  given  against  the  law, 
would  be  singular. 

Upon  these  grounds  I  think  the  supplemental  bill  for  an  account 
by  the  new  trustees,  the  tenant  for  life,  and  tenant  of  the  inheritance 
was  properly  brought.  The  trustees  were  the  proper  persons  to  file 
the  bill  against  the  late  marquis,  and  the  present  plaintiffs  were  the 
proper  persons  to  file  the  supplemental  bill,  though  one  of  the  plain- 
tiffs was  not  in  esse  when  the  first  bill  was  filed,  inasmuch  as  the 
money  produced  by  the  waste  is  not  to  be  pocketed,  but  to  be  laid  up 
for  the  benefit  of  those  who  in  succession  will  take  the  estate.     .     .     . 


oil.    3)  TRESPASS.  237 


SECTION  II  TRESPASS. 


KING  V.  STUART. 

(United   States   Circuit    Court,    1897,   84   Fed.    546.) 

Paul,  D.  J.  This  is  a.  suit  brought  by  the  plaintiff,  Henry  C 
King,  to  restrain  the  defendants  from  cutting  and  carrying  away  the 
timber  of  the  plaintiff  on  certain  lands  claimed  by  him,  lying  in  Buch- 
anan county,  Va.,  the  same  being  part  of  a  tract  of  500,000  acres 
lying  in  the  states  of  Virginia,  West  Virginia,  and  Kentucky 

The  first  ground  of  demurrer,  viz.  "that  the  plaintiff  has  a  full, 
complete,  and  adequate  remedy  at  law,  and  is,  therefore,  not  en- 
titled to  relief  in  equity  for  the  matters  complained  of  in  said  bill," 
presents  a  clearly  defined  and  important  question  for  decision.  A 
demurrer  to  a  bill  in  equity  admits  the  truth  of  the  allegations  of 
fact  in  the  bill  so  far  as  the  same  are  well  pleaded.  1  Post.  Fed. 
Prac.  §  108.  The  defendants  in  this  cause,  by  their  demurrer,  admit 
the  complainant  has  title  to  the  land  mentioned  in  the  bill  lying  within 
this  district,  and  that  he  is  in  possession  of  the  same.  They  like- 
wise admit  that  the  defendants  have  no  title  to  said  land ;  that  they 
are  not  in  possession  thereof.  They  admit  that  the  land  is  wild  and 
uncultivated ;  that  it  is  heavily  timbered  with  a  valuable  growth  of 
poplar,  oak,  walnut,  and  other  valuable  trees,  and  is  practically  worth- 
less for  agricultural  purposes ;  that  it  was  purchased  by  the  com- 
plainant solely  on  account  of  the  timber;  that  they  have,  against  the 
protest  of  the  plaintiff,  entered  upon  said  land,  and  have  cut  down, 
and  are  preparing  and  threatening  to  remove  a  large  quantity  of 
valuable  walnut  and  other  timber ;  that  they  enjoy  ready  facilities 
for  removing  the  same  out  of  the  state  of  Virginia  into  the  states 
of  Kentucky  and  West  Virginia.  They  further  admit  the  facts  upon 
which  it  is  alleged  that  these  trespasses  if  permitted  to  continue,  will 
result  in  permanent  and  irreparable  injury  and  damage  to  the  land  and 
to  the  plaintiff.     Admitting  these  facts,  the  defendants  insist  that  a 


238i  .REPARATION    AND    PREVENTION   OF    TORTS.  (Part    1 

court  of  equity  cannot,  by  injunction,  prevent  an  actual  or  threaten- 
ed trespass  going  to  the  destruction  of  the  growing  timber,  and  there- 
by causing  irreparable  damage  to  the  plaintiff.  It  has  frequently 
been  held  by  this  court,  and  by  the  circuit  court  of  appeals  for  this 
circuit  that  pending  an  action  at  law  to  try  the  title  to  land,  an  in- 
junction will  lie  to  prevent  the  cutting  and  removal  of  timber  until 
the  question  of  the  title  has  been  determined  at  law;  that  the  interests 
of  the  parties  should  remain  in  statu  quo  pending  the  litigation  of 
the  title.  The  defendants  in  this  cause  insist  that,  as  there  is  no 
action  pending  at  law  involving  the  title  to  the  land,  an  injunction 
will  not  He  to  prevent  the  destruction  of  timber,  which  the  plaintiff 
alleges  will  result  in  irreparable  injury  to  him.  The  contention  of  the 
defendants  is  that  the  plaintiff  has  a  full,  adequate,  and  complete 
remedy  at  law  for  any  damage  he  may  suffer  by  reason  of  the  tres- 
passes of  which  he  complains ;  that  this  remedy  is  an  action  at  law 
for  damages,  to  be  measured  by  the  value  of  the  timber  removed.  That 
this  was  the  doctrine  at  common  law  is  admitted,  but  that  its  strict- 
ness has  been  greatly  modified  by  the  decisions  of  courts  of  equity 
in  England  and  in  this  country  is  too  well  established  to  admit  of 
discussion.  A  leading  case  in  this  country  on  this  subject  is  that 
of  Jerome  v.  Ross,  7  Johns.  Ch.  315.  In  this  case  Chancellor  Kent, 
while  closely  adhering  to  the  common-law  doctrine,  said : 

"In  ordinary  cases,  this  latter  remedy  (an  action  at  law)  has  been 
found  amply  sufficient  for  the  protection  of  property;  and  I  do  not 
think  it  advisable,  upon  any  principle  of  justice  or  policy,  to  introduce 
the  chancery  remedy  as  its  substitute,  except  in  strong  and  aggravated 
instances  of  trespass  which  go  to  the  destruction  of  the  inheritance,  or 
where  the  mischief  is  remediless." 

He  further  says : 

"I  do  not  know  a  case  in  which  an  injunction  has  been  granted 
to  restrain  a  trespasser  merely  because  he  was  a  trespasser,  without 
showing  that  the  property  itself  was  of  peculiar  value,  and  could 
not  well  admit  of  due  recompense,  and  would  be  destroyed  by  repeated 
acts  of  trespass." 

As  cautiously  and  carefully  as  Chancellor  Kent  states  the  law,  it 
seems  that  his  view  of  the  doctrine  would  cover  the  case  at  bar,  and 
entitle  the  plaintiff  to  an  injunction.  But  the  law  of  injunction  against 
trespass  has,  since  the  decision  in  Jerome  v.  Ross,  been  relaxed  and 
expanded  until  now  it  is  held  that  an  injunction  will  lie  to  restrain 


Ch.  3)  TEESPASs.  239 

trespass  whenever  the  injury  done  or  threatened  would  result  in  ir- 
reparable injury,  or  the  defendant  is  insolvent.  It  will  also  be  grant- 
ed where  the  entire  wrong  cannot  be  redressed  by  one  action  at  law  for 
damages;  this  on  the  principle  that  equity  will  interpose  by  injunction 
to  prevent  a  multiplicity  of   suits.     .     .     . 

The  contention  of  counsel   for  the  defendants  that   an   injunction 
to  prevent  the  destruction  of  trees  is  confined   to   trespasses   -vhich 
destroy  groves  kept  for  beautifying  the  owner's  home  or  lands,    or  to 
shade  and  ornamental  trees,  cannot  be  sustained.     The  modern  de- 
cisions apply  the  relief  by  way  of  injunction  to  coal,  iron,  and  other 
mines,  and  to   growing  timber   in   a   forest.     Applying  the   doctrine 
laid  down  in  the  authorities  above  quoted,  I  find  no  difficulty  in  de- 
ciding that  the  temporary  injunction  in  this  cause  was  properly  award- 
ed, and  should  be  perpetuated.    The  trespass  committed  is  not  a  single 
act,  temporary  in  its  nature,  and  such  as  might  be  compensated  for 
by  a  single  action  for  damages,  but  is  continuous  from  day  to  day,  and, 
if  permitted  to  continue,  will  ultimately  result  in  the  entire  destruc- 
tion of  the  valuable  timber  admitted  to  belong  to  the  plaintiff.     The 
damage  done  to  the  plaintiff  today  by  cutting  his  timber  is  the  founda- 
tion for  an  action  of   damages.     The  measure  of   recovery,  on  the 
damages  laid  in  the  writ  in  an  action  brought  for  this  trespass  will 
be  the  injury  suffered  by  the  plaintiff  to  the  time  of  bringing  his  suit. 
Tomorrow  the   defendant   commits    further   injury   by   cutting   other 
timber,  thus  giving  the  plaintiff  another  cause  of  action,  and  requiring 
him  to  bring  another  suit,  if  he  is  to  be  remitted  to  his  remedy  at 
law,  for  it  is  not  to  be  presumed  that  the  plaintiff  will  stand  idly  by 
until  the  destruction  of  his  property  is  complete,  and,  by  his  acquies- 
cence, perhaps  endanger  his  right  to  recovery   of   damages    for  the 
injury  done  him.     This  statement  shows  the  multiplicity  of   suits  to 
which  the  plaintiff  would  have  to  resort  for  redress,  and  at  the  same 
time  it  shows  the  futility  of  the  plaintiff's  remedy  at  law, — a  remedy 
which  must  be  full,  complete,  and  adequate.    The  remedy  by  an  action 
at  law  for  damages  against  a  trespasser  may  have  been  an  efficient 
remedy  at  common  law.     But  at  this  day,  when  property  of  all  kinds 
readily  and  easily  changes  hands ;  when  a  man  who  is  solvent  today 
may  be  insolvent  tomorrow ;  when  the  ready  means  of  transportation 
quickly  conveys  personal  property  from  one  section  of  the  country  to 
another,  perhaps  out   of   the   jurisdiction  of   the   courts   which   have 


240  EEPARATION    AND    PREVENTION    OF    TORTS.  (Part    1 

been  established  for  the  protection  of  property  rights;  and  when  we 
consider  the  long  delays  that  often  precede  a  trial,  a  judgment,  and 
execution, — we  see  how  entirely  inadequate  is  the  remedy  at  law  to 
secure  compensation  to  a  person  whose  property  is  destroyed  by  a 
trespasser.     So  far  from  his  remedy  at  law  being  full,  complete,  and 
adequate,  he  may  find  himself,  at  the  end  of  his  litigation,  with  a 
naked  execution  in  his  hands,  with  no  means  for  its  satisfaction.     In 
the  meantime  his  most  valuable  property  interests  have  been  destroyed. 
The   only   remaining  question    for   discussion   is:      Is   the   damage 
that  will  result  to  the  plaintiff  if  the  defendants  are  permitted  to  cut 
and  carry   away  his  valuable  timber   irreparable?     It   must   be   con- 
ceded that  every  man  has  a  right  to  enjoy  his  own  property  in  his 
own  way ;  that  he  has  a  right  to  say  how  long  he  will  keep  it,  and  when 
and  how  he  will  dispose  of  it.     In  the  case  of  a  heavily-timbered  tract 
of  land,  like  that  of  the  plaintiff,  it  is  his  right  to  say  what  part  of  it, 
if  any,  or  what  particular  trees  or  kinds  of   trees,  he  will  cut,  and 
what  he  will  leave  standing.    It  is  difficult  to  find  any  kind  of  property 
that  will  suffer  more  by  unrestrained  trespasses,  or  that  is  more  diffi- 
cult to  be  compensated  for  in  damages  after  its  destruction  than  a 
forest  of  growing  timber  such  as  the  plaintiff's.     The  trees  are  in- 
creasing in  size  and  value  from  year  to  year;  the  younger  trees  are 
constantly  reaching  nearer  the  size  at  which  they  can  be  profitably 
utilized,  and  are  constantly  rendering  the  estate  more  valuable.     Coal 
and  ore,  if  taken  from  mines,  may  be  measured  as  to  quantity  and 
value.     They  have  no  increasing  value  by  reason  of  growth,  but  are 
of  fixed  quantity.   Yet  the  removal  of  coal  and  ore  from  mines  is  held 
to  work  irreparable  damage  to  the  property  of  the  owner  of  the  mine. 
The  court  knows  of  no  measure  of  damages  that  could  be  adopted 
by  a  jury  that   would   properly   estimate   what   would   be   the   value 
of  a  body  of  timber  five  years  hence  that  is  destroyed  by  a  trespasser 
today.    The  court  has  no  hesitancy  in  holding  that  the  destruction  of 
the  plaintiff's  timber  by  the  defendant,  as  they  threaten  to  do,  and 
were  doing  when  restrained,  would  result  in  irreparable  damage  to  the 
property  of  the  plaintiff,  and  that  the  plaintiff  is  entitled  to  the  pro- 
tection of  a  court  of  equity.     .     .     . 


Cb.    3)  TRiESPASS.  241 


MURPHEY  V.  LINCOLN. 

(Supreme  Court  of  Vermont,  1891,  63  Vt.  278,  22  Atl.  418.) 

Thompson,  J.  .  .  .  The  defendants  contend  that  this  case  is 
not  within  the  jurisdiction  of  a  court  of  equity,  for  the  reason  that  the 
orator  has  an  adequate  remedy  at  law.  The  bill  charges  the  commit- 
ting of  several  continuous  trespasses  by  defendants  by  drawing  wood 
and  logs  from  their  land  across  the  pasture  and  meadow  land  of  the 
orator,  and  that  the  defendants  threaten  to  continue  to  commit  these 
trespasses.  The  defendants,  in  their  answer,  either  expressly  or 
tacitly,  by  their  failure  to  deny  them,  admit  the  truth  of  these  allega- 
tions. They  also  claim  a  right  of  way  across  the  orator's  land  to  that 
part  of  the  propagation  lot  owned  by  them  by  the  route  traveled 
when  they  committed  the  alleged  trespasses.  These  facts  bring  the 
case  within  the  jurisdiction  of  the  court  of  equity.  The  rule  appli- 
cable to  cases  of  this  kind  is  stated  in  3  Pom.  Eq.  Jur.  §1357,  as 
follows:  "If  the  trespass  is  continuous  in  its  nature,  if  repeated 
acts  of  wrong  are  done  or  threatened,  although  each  of  these  acts  taken 
by  itself  may  not  be  destructive,  and  the  legal  remedy  may,  therefore, 
be  adequate  for  each  single  act  if  it  stood  alone,  then  also  the  entire 
wrong  will  be  prevented  or  stopped  by  injunction  on  the  ground  of 
avoiding  a  repetition  of  similar  actions."  The  use  of  this  way 
across  the  orator's  land  by  defendants  under  a  claim  of  right,  if  con- 
tinued long  enough  would  ripen  into  an  easement.  Equity  will  inter- 
fere to  enjoin  such  wrongful  acts,  continued  or  threatened  to  be 
continued,  to  prevent  the  acquisition  of  an  easement  in  such  a  man- 
ner.    .     .     . 


LADD  V.  OSBORNE. 

(Supreme  Court  of  Iowa,  1890,  79  Iowa  93,  44  N.  VV.  285.) 

RoTHROCK,  C.  J.  .  .  .  It  is  claimed  that  the  proof  does  not 
establish  the  facts  that  the  defendant  repeatedly  opened  the  fences 
and  traveled  across  the  premises,   and   that    it   affirmatively  appears 

1  Eq.— 16. 


2421  REPARATION    AND    TEEVENTION    OF    TORTS.  (Part    1 

that  he  is  not  insolvent,  and  that  there  is  no  ground  for  equitable 
interference  by  injunction  for  what  was  merely  an  action  at  law  for 
trespass.  The  right  to  an  action  in  equity,  restraining  the  removal  of 
fences  and  opening  up  highways,  the  cutting  down  of  shade  trees, 
or  any  other  threatened  invasion,  use  or  occupation  of  the  land  of 
another,  has  been  too  long  established  in  this  state  to  be  now  called  in 
question.  In  City  of  Council  Bluffs  v.  Stewart,  51  Iowa,  385,  it  was 
said  that  "Courts  of  equity  will,  under  certain  circumstances,  inter- 
fere by  injunction  to  prevent  trespasses  upon  real  estate;  but  to 
authorize  such  interference  there  must  exist  some  distinct  ground  of 
equitable  jurisdiction,  such  as  the  insolvency  of  the  party  sought  to  be 
enjoined,  the  prevention  of  waste  or  irreparable  injury,  or  a  multiplic- 
ity of  suits."  See,  also  Bolton  v.  McShane,  67  Iowa,  207,  and  cases 
there  cited.  In  the  case  at  bar  the  evidence  shows  that  there  had 
been  for  some  time  contention  between  the  parties  as  to  whether  a  pub- 
lic road  existed  over  plaintiff's  land.  The  defendant  contended  that 
there  was  a  public  highway,  and  he  more  than  once  opened  the  plain- 
tiff's fences,  and  traveled  over  the  land,  and  threatened  to  continue 
to  do  so.  The  plaintiff  was  not  required  to  institute  an  action  at  law 
for  every  act  of  trespass,  but,  to  avoid  a  multiplicity  of  suits,  it  was 
his  right  to  have  relief  in  equity  by  injunction,  regardless  of  whether 
the  defendant  was  solvent  or  insolvent.     .     .     , 


STARR  V.  WOODBURY  GLASS  WORKS. 

(New  Jersey   Court   of   Chancery,    1901,    48   Atl.    911.) 

Bill  by  Lewis  Starr  against  the  Woodbury  Glass  Works  for  an 
injunction  to  prevent  the  running  of  oil  on  plaintiff's  premises. 

Injunction  advised.     .     .     . 

Grey,  V.  C.  The  complainant  owns  and  is  in  possession  of  a 
piece  of  meadow  and  pasture  land  in  Woodbury  adjoining  the  prop- 
erty where  the  defendant  has  located  its  glass  works,  in  which  it  uses 
large  quantities  of  crude  kerosene  oil.  All  the  affidavits  show  that 
the  waste  from  the  use  of  this  oil  was  by  the  defendant  permitted 
to  flow  over  and  upon  the  complainant's  lands.  That  the  presence  of 
such  material  upon  a  meadow  is  destructively  injurious,  fouling  the 


Cll.    3)  TRESPASS.  243 

waters,  and  ruining  the  vegetation,  goes  without  saying,  but  is  also 
proven  without  denial.     The  affidavits  annexed  to  the  bill   of  com- 
plaint, together  with  the  contents  of  a  bottle  containing  a  sample  of 
the  water  on  complainant's  lands,  offered  as  an  exhibit,   show  the 
condition  of  his  premises  immediately  before  the  filing  of  the  bill  in 
this  cause.     These  exhibit  a  foulness  which  is  wholly  impossible  in 
nature,  rendering  the  flowing  water  worse  than  useless  for  any  pur- 
pose.    This  condition  is  shown  by  the  defendant's  letters  of  explana- 
tion and  denial,  and  substantially  by  the  affidavits  it  offers,  to  be  at- 
tributable to  the  overflow  of  waste  oil  and  oil  water  from  defendant's 
premises  over  to  and  upon  the  complainant's  land.     The  defendant's 
affidavits  do  not  deny  that  the  waste  oil  thus  came  over  upon  com- 
plainant's lands,  nor  that  if  fouled  the  waters  there  flowing.     The  de- 
fendant practically  admits  that  it  has  done  the  injury  complained  of, 
but  it  declares  that  it  has  so  arranged  its  use  of  the  oil  that  since  July, 
1900,  there  has  been  no  overflow  of  oil  waste.    It  does  not  seem  to  be 
possible  that  an  oil  so  volative  and  difficult  to  retain  as  kerosene  could 
be  found,  just  before  the  filing  of  the  bill,  deposisted  in  such  great 
quantity,  when  there  had  been  no  overflow  for  more  than  eight  months. 
In  such  a  period  the  previous  deposit  lying  open  to  the  weather  and 
on  the  surface  of  the  earth,  would  either  have  evaporated  or  perco- 
lated out  of  sight.    The  proof  is  that  it  is  presently  on  complainant's 
of  his  property  for  which  no  adequate  satisfaction  can  be  given.     It 
is  a  continuing  injury  to  his  property  right.    He  cannot  use  his  meadow 
for  pasture,  he  cannot  cultivate  his  lands,  his  stock  cannot  be  watered 
in  the  ditch  or  stream.  For  such  inconvenience,  vexation,  and  depriva- 
tion no  damages  that  could  be  recovered  would  afford  any  adequate 
satisfaction.     There  is  the  less  reason  to  hesitate  to  allow  an  injunc- 
tion in  this  case  because  there  is  no  denial  by  the  defendant  that  the 
waste  material  has  flowed  from  the  defendant's  lands  upon  the  com- 
plainant's premises,  nor  is  there  any  claim  of  any  right  to  maintain 
such  an  overflow.     The  denial  is  limited  to  the  claim  that  the  de- 
fendant has  now  so  fixed  its  works  and  the  use  of  the  oil  that  the  in- 
jury does  not  continue.    This  claim  is  not  sustained,  but,  if  it  be  true, 
the  injunction  cannot  harm  the  defendant,  as  it  will  only  prohibit  the 
permittance  of  future  foul  overflows,  and  this  the  defendant  contends 
it  has  already  arranged;  wherea-s,  if  it  be  false,  and  no  writ  is  allowed, 
the  admitted  injury  to  the  complainant's  premises  will  continue.     1  will 
advise  the  allowance  of  an  injunction. 


244  EEPAEATIOiSr    AND    PREVENTION    OF    TOETS.  (Part    1 

CROCKER  V.  MANHATTAN  LIFE  INS.  CO. 

(Supreme  Court  of  New  York,  1900,  31  N.  Y.  Misc.  687,  66  N.  Y.  Supp.  84.) 

Lawrence,  J.     ...     I  am  of  the  opinion,  also,  that  the  evidence 
estabhshes  that  from  the  roof  of  the  defendant's  building  to  the  roof 
of  the  plaintiff's  building,  at  the  Broadway  end,  the  defendant's  north 
wall  overhangs  the  plaintiff's  true  southerly  line  by  3i/^  inches  at  the 
first  cornice,  at  the  second  cornice  3^  inches,  and  at  the  third  cornice 
4}i  inches ;  also,  that  the  defendant's  northerly  wall  extends  over  the 
plaintiff's  southerly  boundary  line  at  the  New-street  end  IVs  inches,  at 
the  roof  of  the  plaintiff's  building,  and  that  from  that  point  the  de- 
fendant's wall  is  plumb.     Upon  this  state  of  facts,  as  the  principal 
encroachment  is  in  the  air,  I  am  of  the  opinion  that  the  case  which  is 
presented  is  purely  one  for  compensation,  and  that,  as  this  action  has 
been  brought  upon  the  equitable  side  of  the  court,  while  the  plaintiff 
should  be  afforded  proper  compensation  it  would  be  most  unjust  to 
the  defendant  to  order  it  to  take  down  the  northerly  wall  of  its  build- 
ing, or  such  part  as  may  be  necessary  to  remove  the  encroachment. 
The  evidence  shows  that  to  take  down  that  wall  would  subject  the  de- 
fendant to  enormous  expense,  without  conferring  upon  the  plaintiff 
any  corresponding  benefit.     The  principal  encroachment  is  at  a  great 
height,  and  it  is  questionable,  on  the  evidence,  whether  it  will  material- 
ly lessen  the  rental  or  fee  value  of  the  plaintiff's  property.     It  is  con- 
ceded by  the  defendant  that  the  ornamental  cornices  and   swinging 
iron  shutters  project  over  the  plaintiff's  southern  boundary  line.     The 
shutters  were  placed  there,  as  is  claimed  by  the  defendant,  in  obedience 
to  chapter  275  of  the  Laws  of  1892   (section  491).     The  defendant 
offers  to  enter  into  any  obligation  which  may  be  required  to  show 
that  it  makes  no  claim  in  consequence  of  the  location  of  the  shutters 
and  cornices,  to  have  acquired  a  permanent  right  to  keep  them  in  their 
present  location,  or  to  obtain  an  easement  in  respect  to  them  in  the 
plaintiff's  land.     I  conclude,  therefore,  that  the  proper  judgment  to 
be  rendered  in  this  case  will  be  to  enjoin  the  defendant  from  continuing 
the  cornices  and  shutters  in  their  present  position  whenever  the  plain- 
tiff or  his  grantees  shall  require  them- so  to  do,  if  the  plaintiff  or  his 
grantees  should  desire  to  build  upon  the  premises  known  as  "No.  70 
Broadway."     The  defendant  should  also  be  required  to  execute  an 


Ch.   3)  TRESPASS.  2-I-5 

instrument,  to  be  approved  of  by  the  court,  declaring  that  it  makes 
no  claim  to  any  right  to  have  said  cornices  and  shutters  remain  per- 
manently in  their  present  position.    The  plaintiff,  too,  is  entitled  to  be 
compensated  for  the  damages  which  he  has  sustained  by  reason  of  the 
encroachment   of   the   defendant   upon   his   boundary   line,    as    above 
stated.     On  the  evidence  before  me,  it  is  most  difficult  to  determine 
what  that  compensation  should  be,  but.  after  considering  the  expert 
testimony  produced   by  the   parties,    I   have   reached   the   conclusion 
that  $5,000  would  not  be  an  excessive  amount  to  be  paid  by  the  de- 
fendant to  the  plaintiff.     The  judgment  will  provide,  however,  that 
the  plaintiff  shall  execute  and  deliver  to  the  defendant,  upon  the  re- 
ceipt  of   that   sum,   a   release   for   all   damages   which   he   may   have 
sustained  by  reason  of  the  encroachment.     If  that  is  declined  by  the 
plaintiff",  then,  as  it  is  not  always  incumbent  upon  the  court  to  grant 
an  injunction  where  its  allowance  would  produce  vast  injury  to  the 
defendant  without  corresponding  benefit  to  the  plaintiff",  I  think  that 
I  ought,  in  the  exercise  of  my  discretion,  to  refuse  the  plaintiff  equit- 
able relief,  and  remit  him  to  his  action  at  law.     Amerman  v.  Deane, 
132  N.  Y.  355,  30  N.  E.  741 ;  Garvey  v.  Railroad  Co.  159  N.  Y.  323, 
333,  54  N.  E.  57;  McSorley  v.  Gomprecht  (Super.  N.  Y.)  26  N.  Y. 
Supp.  917,  and  cases  cited.    Draw  decision  and  judgment  in  accordance 
with  these  views,  and  settle  on  three  days'  notice. 
Judgment  accordingly. 


BOECKLER  v.  MISSOURI  PACIFIC  RY.  CO. 

(Misouri  Court  of  Appeals,   1881,   10  Mo.   App.  448.) 

Thompson,  J.  ...  A  court  of  equity  will  never  grant  an  in- 
junction to  restrain  a  trespasser  upon  real  property  merely  because 
he  is  a  trespasser ;  the  trespass  threatened  and  committed  must  be  of 
a  nature  permanently  to  injure  or  destroy  the  inheritance,  or  other- 
wise inflict  such  irreparable  mischief  as  is  not  susceptible  of  adequate 
compensation  by  way  of  pecuniary  damages.  Weigel  v.  Walsh,  45 
Mo.  560 ;  Burgess  v.  Kattleman,  41  Mo.  480 ;  James  v.  Dixon,  20  Mo. 
79.  Under  this  rule,  an  injunction  was  granted,  where  the  trespass 
was  such  as  would  destroy  the  plaintiff's  dwelling-house   or   render 


246  EEPAEATION    AND    PEEVENTION    OF    TORTS.  (Part    1 

it  unfit  for  habitation.  Echelkamp  v.  Schrader,  45  Mo.  505.  It  was 
also  granted  in  another  case  to  restrain  a  railroad  company  from 
operating  its  road  over  the  plaintiff's  land,  unless  it  should  pay  into 
court  the  damages  assessed  for  the  taking  of  the  land,  the  company 
being  insolvent.  Evans  v.  Railroad  Co.,  64  Mo.  453.  And,  it  may 
be  added  that  courts  of  equity  will  generally  interfere  to  restrain 
trespasses  threatened  by  persons  who  are  insolvent,  because,  in  such 
a  case,  an  action  for  damages  would  obviously  afiford  no  adequate 
remedy.  But  there  is  no  suggestion  in  the  record  that  the  defendant 
in  this  case  is  insolvent. 

How  does  the  present  case  stand  with  reference  to  these  principles? 
Stating  it  most  strongly  in  favor  of  the  plaintiff,  it  may  be  assumed 
that  the  plaintiff  has  long  been  the  owner  of  a  lot  of  ground  in  South 
St.  Louis,  which  fronts  on  the  Mississippi  River,  and  which  is  chiefly 
valuable  for  that  reason ;  that  in  1872,  defendant's  grantor,  the  Pacific 
Railroad,  tortiously  entered  upon  this  lot  and  built  a  railway  spur  or 
side  track  diagonally  across  it,  upon  a  trestle-work,  about  twelve  feet 
high;  and  that  the  defendant's  grantor,  the  Pacific  Railroad,  and 
the  Atlantic  and  Pacific  Railroad  Company,  under  a  lease  from  the 
Pacific  Railroad,  and  since  the  beginning  of  the  year  1877,  the  defendant 
itself,  have  been  using  this  track  by  running  trains  back  and  forth 
over  it  at  frequent  intervals, — and  all  this  without  the  consent  of  the 
plaintiff  and  against  her  will,  and  without  having  condemned  and  paid 
for  the  land  as  required  by  the  laws  of  this  state. 

What  more  is  this  than  a  partial  or  total  disseisin  of  the  plaintiff, 
for  which  she  may  have  adequate  compensation  in  an  action  at  law 
for  damages?  There  are  here  none  of  the  elements  which  are  found 
in  cases  where  courts  have  enjoined  trespasses  upon  real  property;  no 
severing  from  the  realty  and  carrying  away  of  valuable  timber,  stone, 
or  ores ;  no  injury  to  the  inheritance ;  no  destruction  or  invasion  of  the 
plaintiff's  habitation ;  no  insolvency  of  the  defendant.  Without  inti- 
mating an  opinion  whether  it  is  a  proper  case  for  ejectment,  it  is 
clear  that  she  may  maintain  an  action  for  the  damages  which  she  has 
sustained  through  the  trespass ;  or  that,  waiving  the  tort,  she  may 
maintain  an  action  as  on  an  implied  contract  for  the  rental  value  of  the 
premises  during  the  time  the  defendant  has  thus  occupied  them.  We 
see  nothing  in  the  facts  of  this  case  to  distinguish  it  in  principle  from 
the  constantly  recurring  case  where  one  man  tortiously  occupies  the 


Ch.  3)  TRESPASS.  247 

vacant  land  of  another,  puts  a  dwelling-house  or  other  building  upon  it, 
and  goes  in  and  out  of  it  by  himself  and  his  servants  from  day  to  day. 
In  such  a  case,  if  nothing  further  appears,  it  is  clear  that  an  injunction 
will  not  be  awarded ;  for  to  do  so  would  be  to  substitute  the  discretion 
of  the  judge  in  a  suit  in  equity  for  the  verdict  of  a  jury  in  an  action  of 
trespass  or  ejectment — a  thing  which  our  law  does  not  countenance. 

"Where  the  trespass  complained  of,"  says  Mr.  High,  "consists 
in  the  erection  of  buildings  upon  the  complainant's  land,  a  distinction 
is  taken  between  the  buildings  when  in  an  incomplete,  and  when  in  a 
finished  state.  And  while  the  jurisdiction  is  freely  exercised  before 
the  completion  of  the  structures,  yet  if  they  have  been  completed, 
the  relief  will  generally  be  withheld,  and  the  person  aggrieved  will  be 
left  to  his  remedy  by  ejectment."  1  High  on  Inj.  (2d.),  sect.  707. 
We  do  not  perceive  a  distinction  in  principle  between  the  case  of  the 
erection  of  a  building,  and  the  erection  of  a  side-track  by  a  railway 
company. 

Nor  do  we  think  this  is  a  case  for  this  relief  on  the  ground  that  the 
trespass  is  continuous  in  its  nature.  We  agree  with  the  learned  judge 
of  the  Circuit  Court,  in  the  opinion  delivered  by  him,  that  "the  con- 
tinuous character  of  the  trespass  is  a  fact  to  be  regarded,  but  it  is 
not  sufficient  in  itself,  without  other  circumstances,  to  authorize  in- 
junctive relief."  It  is  obvious  that  if  that  were  not  so,  any  continuing 
dispossession  by  a  trespasser  wouW  authorize  an  injunction,  and  the 
remedy  would  thus  become  a  complete  substitute  for  ejectment.     .     . 


TURNER  V.  STEWART. 

(Supreme  Court  of  Missouri,  1883,  78  Mo.  480.) 

Martin,  C.  This  was  a  petition  for  an  injunction,  the  substance 
of  which  we  recite.  The  plaintiff  stales  that  he  is  the  owner  and  in 
possession  of  a  private  wharf  and  landing  on  the  west  side  of  the 
Osage  River;  that  he  is  engaged  in  operating  a  saw-mill  and  niachin-j 
for  loading  and  unloading  cars  with  railroad  ties,  which  mill  and 
machine  he  has  erected  on  said  premises  at  great  expense;  llial  lie  is 
under  contract  to  furnish  and  deliver  a  large  amount  of  lumber  to 
different  parties,  and  that  he  has  a  large  number  of  hands  in  his  em- 


248  EEPAEATION    AND    PREVENTION   OF   TORTS.  (Part    1 

ployment  conducting  his  said  business;  that  the  defendants  are  the 
owners  and  proprietors  of  a  steamer  called  the  "Aggie ;"  that  without 
the  consent  of  plaintiff  and  against  his  notice  forbidding  it,  said  de- 
fendants have  at  divers  times  since  the  7th  day  of  May,  1880,  landed 
their  said  steamer  at  said  landing  and  discharged  freight  on  said 
premises,  and  that  they  threaten  to  repeat  and  continue  said  unlawful 
acts  and  trespasses;  that  by  reason  thereof  the  business  of  plaintiff 
in  sawing,  receiving  and  delivering  lumber,  and  loading  and  unloading 
railroad  ties^  is  wholly  suspended  and  stopped  during  the  time  of  said 
acts  and  trespasses ;  that  defendants  are  in  the  habit  of  landing  and 
discharging  freight  and  thereby  interfering  with  and  suspending  the 
said  business  of  the  plaintiff  as  often  as  two  or  three  times  each  week, 
varying  from  a  half  day  to  a  whole  day;  that  he  is  damaged  to  such 
an  extent  that  an  ordinary  action  at  law  would  be  a  wholly  inadequate 
remedy  for  the  injury  sustained,  and  that  a  continuation  of  said  acts 
would  work  an  irreparable  damage  for  which  a  court  of  law  provides 
no  adequate  remedy ;  wherefore  the  order  of  the  court  enjoining  de- 
fendants from  further  trespasses  aforesaid  is  asked  by  plaintiff,  and 
such  other  and  further  relief  as  he  may  be  entitled  to. 

To  this  petition  the  defendants  filed  a  demurrer  for  want  of  facts 
sufficient  to  constitute  a  case  of  action.  It  is  urged  that  an  injunction 
will  not  be  granted  to  restrain  trespasses  unless  the  parties  are  insolvent 
or  the  injury  irreparable.  It  is  also  insisted  that  the  jurisdiction  of  the 
matter  complained  of  belongs  to  the  courts  of  admiralty  and  not  to  the 
State  courts.  The  court  sustained  the  demurrer  and  thereupon  en- 
tered final  judgment  dismissing  the  petition,  from  which  action  of  the 
court  the  plaintiff  presents  his  writ  of  error. 

It  is  not  necessary  that  the  defendant  should  be  insolvent  or  the 
wrong  irreparable  to  sustain  the  right  to  equitable  relief  against  tres- 
passes. It  is  provided  in  our  statute  that  "the  remedy  by  writ  of  in- 
junction shall  exist  in  all  cases  when  an  injury  to  real  or  personal 
property  is  threatened,  and  to  prevent  the  doing  of  any  legal  wrong 
whatever,  whenever  in  the  opinion  of  the  court  an  adequate  remedy 
cannot  be  afforded  by  an  action  for  damages."  R.  S.  1879.  §2722. 
The  business  of  the  plaintiff  was  constantly  interrupted  at  the  pleasure 
of  the  defendants.  He  was  subjected  to  a  grievance  recurring  at  ir- 
regular intervals.  His  immediate  damages  would  be  difficult  to  es- 
timate on  account  of  the  nature  of  his  business.  For  consequential 
damages  and  loss  of  profits  on  his  contracts  it  would  be  difficult  if  not 


Cll.    3)  TRESPASS.  2-1:9 

impossible  to  obtain  anything  in  an  action  at  law.  It  is  also  clear  that 
no  single  action  for  damages  would  alTord  him  redress.  He  would 
have  to  sue  for  every  time  the  defendant  landed;  and  the  burden  of 
carrying  on  such  a  multiplicity  of  law  suits  would  make  his  remedy 
about  as  grievous  as  the  injury.  Under  this  statute  and  the  decisions 
construing  it,  I  am  satisfied  the  plaintiff  was  entitled  to  the  remedy 
asked  for,  and  that  a  suit  at  law  would  not  be  an  adequate  remedy.     .     . 


DEES  V.  CHEUVRONTS. 

(Supreme  Court  of  Illinois,  1909,  240  111.  486,  88  N.  E.  1011.) 

This  was  a  bill  for  injunction  filed  to  the  March  terms,  1908,  of  the 
circuit  court  of  Crawford  county  by  appellees,  to  restrain  the  appel- 
lants, their  agents,  servants,  employees,  successors  and  assigns,  from 
drilling  for  oil  or  gas  on  one  acre  of  land  situated  in  the  south-west 
corner  of  the  south-east  quarter  of  the  south-west  quarter  of  section 
21,  township  7,  north,  range  13,  west,  in  said  county.       .     . 

From  the  facts  set  out  in  the  bill  it  appears  that  Daniel  G.  Dees 
and  Viola  Dees  conveyed  by  warranty  deed  to  the  school  trustees  of 
said  township,  November  5,  1878,  a  certain  described  one-fourth  of 
an  acre  of  land,  "so  long  as  is  kep  for  school  perpesis  hold  said  pos- 
session in  the  school  trustees  after  it  is  not  use  said  perpice  is  to  come 
to  said  Daniel  G.  Dees  or  his  heirs  or  assigns."  The  same  grantor  gave 
to  the  same  grantees  a  quit-claim  deed  May  3,  1892,  to  one  acre  in 
the  south-west  corner  of  said  quarter-quarter  section,  stating  therein : 
"This  deed  made  to  the  trustees  of  schools  so  long  as  it  shall  be  used 
as  a  school  house  site,  and  whenever  it  shall  be  discontinued  as  a 
school  house  site  then  to  revert  to  the  grantors."  It  is  agreed  that  this 
last  named  acre  included  within  its  boundaries  the  one-fourth  of  an 
acre  conveyed  in  the  former  deed.  The  bill  set  forth  that  since  the 
execution  of  said  deeds  the  property  has  been  held  by  the  school  trus- 
tees and  used  for  the  purposes  provided  in  said  deeds;  that  on  May 
3,  1902,  the  school  directors  of  school  district  No.  7,  (which  includes 
said  land,)  and  the  said  school  trustees  of  said  township,  signed  a 
lease  with  C.  F.  Kimmel,  one  of  the  appellants,  under  which  Kimmel 
claims  the  right  to  go  upon  said  land  and  drill  for  and  remove  oil  and 


250  EEPAEATION    AND    PEEVENTION   OF   TORTS.  (Part    1 

gas;  that  the  drilUng  for  oil  and  the  removal  of  the  same  from  said 
tract  of  land  is  not  the  using  of  said  land  for  the  purpose  for  which  it 
was  granted  to  said  school  trustees,  and  would  result  in  irrevocable 
injury  to  said  land  and  to  the  possible  reversion  of  appellees.     .     .     . 

Carter,  J.  The  first  question  presented  for  consideration  is  the 
nature  of  the  interest  that  appellees  have  in  this  land.  The  deeds  in 
question  created  in  the  grantees  a  base  or  determinable  fee,  and  the 
only  right  left  in  the  grantor  was  not  a  vested  future  estate  in  fee,  but 
only  what  is  called  "a  naked  possibility  of  reverter,  which  is  incapable 
of  alienation  or  devise,  although  it  descends  to  his  heirs."  (North 
v.  Graham,  235  111.  178;  Presbyterian  Church  v.  Venable,  159  id.  215; 
O'Donnell  v.  Robson,  239  id.  634.)  Under  these  decisions  it  must  be 
held  to  be  the  settled  law  of  this  State  that  the  interest  of  appellees  in 
the  land  in  question  was  only  a  possibility  of  reverter.  It  then  re- 
mains for  us  to  consider  whether  this  was  such  an  interest  as  entitles 
the  appellees  to  the  relief  prayed  for  and  allowed  in  the  trial  court. 

It  is  not  alleged  in  the  bill  or  contended  in  the  brief  that  the  land  in 
question  is  not  still  used  as  a  school  house  site,  or  that  the  exercise  of 
the  right  granted  by  the  lease  to  Kimmel  to  go  on  said  land  and  drill 
for  oil  would  in  any  way  interfere  with  such  use  of  the  land.  Appar- 
ently appellees  have  not  filed  their  bill  for  the  purpose  of  having  this 
base  fee  determined  by  the  court  on  the  ground  that  it  had  been  de- 
feated by  non-compliance  with  the  conditions  in  the  said  deed.  Ap- 
pellees seek  rather  through  a  court  of  equity  to  direct  said  school 
trustees  and  directors  as  to  the  use  of  said  property.  On  this  record 
it  must  be  held  that  the  land  is  still  used  for  the  purposes  set  out  in  the 
deeds  and  that  the  title  to  the  estate  granted  by  said  deeds  is  still  held 
by  the  trustees  of  schools.  This  court,  in  Gannon  v.  Peterson,  193 
111.  372,  stated  that  equity  would  interfere  to  enjoin  equitable  waste 
by  the  owner  of  a  base  or  determinable  fee  only  when  it  is  made  to  ap- 
pear that  the  contingency  which  will  determine  the  fee  is  reasonably 
certain  to  happen  and  the  waste  is  of  such  character  that  a  court  of 
equity  can  say  that  the  party  is  charged  with  a  wanton  and  conscience- 
less use  of  his  rights,  and  we  there  held  that  equity  would  not  enjoin 
the  owner  of  a  base  fee  from  leasing  coal  mining  privileges.  The  doc- 
trine laid  down  in  that  case  was  re-affirmed  in  Fifer  v.  Allen,  228  111. 

507. 

We  are  compelled  to  hold  that  appellees  have  shown  no  present 
estate  in  the  land,— nothing  but  an  expectancy ;  a  mere  possibility  of 


Cll.   3)  TRESPASS.  251 

reverter ;  a  right  not  now  capable  of  being  valued.  No  estate  is  vested 
in  appellees  and  none  may  ever  vest.  A  court  of  equity,  in  its  ordinary 
jurisdiction,  cannot  protect  a  mere  expectancy. 

The  decree  of  the  circuit  court  is  reversed  and  the  case  remanded 
to  that  court,  with  directions  to  enter  a  decree  dismissing  the  bill. 

Reversed  and  remanded,  with  directions. 


WARLIER  V.  WILLIAMS. 

(Supreme  Court  of  Nebraska,  1897,  53  Neb.  143.) 

Ragan,  C.  In  the  district  court  of  Burt  County,  John  Warlier 
brought  this  suit  in  equity  against  Charles  Williams  and  others,  al- 
leging, in  substance,  in  his  petition  that  he  was  the  owner,  and  in  the 
actual  possession,  of  a  certain  tract  of  land  described  in  said  petition ; 
that,  at  the  time  of  the  conveyance  of  said  land  by  the  government  of 
the  United  States  to  his  grantor,  the  Missouri  river  constituted  one  of 
its  boundaries;  that  the  tract  conveyed  by  the  United  States  govern- 
ment since  that  time  has  been  enlarged  by  accretions  from  said  river ; 
that  the  parties  made  defendants,  against  his  protest  and  without  any 
right  or  color  of  title  or  authority,  had  forcibly  entered  into  possession 
of  the  lands  formed  by  said  accretion;  had  "squatted"  thereon;  and, 
at  the  bringing  of  the  suit,  were  using  and  cultivating  said  lands  and 
appropriating  to  themselves  the  crops  grown  thereon;  that  said  de- 
fendants and  each  of  them  were  wholly  insolvent;  that  if  they  were 
permitted  to  remain  in  possession  of  said  land  for  ten  years  they 
would  acquire  title  thereto  by  adverse  possession.  The  prayer  was 
that  the  defendants  might  be  enjoined  from  continuing  in  possession 
of  said  lands.  To  this  petition  the  district  court  sustained  a  general 
demurrer  and  dismissed  Warlier's  action,  and  he  brings  this  judgment 
here  for  review  on  error. 

The  proceeding  is,  in  effect,  an  application  to  a  court  of  equity  for 
a  mandatory  injunction  to  remove  the  defendants  in  error  from  the 
real  estate  of  the  plaintiffs  in  error  upon  which  llicy  have  forcibly 
and  wrongfully  entered  and  are  wrongfully  occupying.  Counsel  for 
the  plaintiff  in  error  has  cited  us  to  numerous  cases  which  he  claims 
sustain  his  right  to  this  extraordinary  remedy;  but  an  cxainitialinn  of 


252,  BEPAEATION    AND    PEEVENTION   OF   TORTS.  (Part    1 

all  these  cases  discloses  that  not  one  of  them  is  in  point.  A  litigant  can- 
not successfully  invoke  the  extraordinary  remedy  of  injunction  to  en- 
force a  legal  right  unless  the  facts  and  circumstances  in  the  case  are 
such  that  his  ordinary  legal  remedies  are  inadequate, — that  it,  that 
the  pursuit  of  those  remedies,  or  some  of  them,  will  not  afford  him  as 
prompt  and  efficacious  redress  as  the  remedy  by  injunction.  This  we 
understand  to  be  elementary  law.  (Richmond  v.  Dubuque  &  S.  C.  R. 
Co.,  32  la.  422;  Jerome  v.  Ross,  7  Johns.  Ch.  (N.  Y.)  315;  Pomeroy, 
Equity  Jurisprudence,  sees.,  221,  275,  1346,  1347,  1357.)  Now  the 
facts  stated  in  the  petition  of  the  plaintiff  in  error  show  simply  this : 
That  the  defendants  in  error  have  forcibly  entered  upon  and  are  oc- 
cupying his  real  estate.  The  plaintiff  in  error  has  the  legal  title  and  is 
in  possession  of  this  real  estate.  He  might  then  institute  against  these 
defendants  in  error  an  action  of  forcible  entry  and  detainer  under 
chapter  10  of  the  Code  of  Civil  Procedure,  section  1020  of  which  ex- 
pressly provides  that  such  an  action  may  be  brought  against  a  de- 
fendant who  is  a  settler  or  occupier  of  lands  without  color  of  title  and 
to  which  the  complainant  in  the  forcible  detainer  suit  has  the  right 
of  possesion.  Here,  than,  is  a  plain  statutory  remedy  for  the  wrong 
of  which  the  plaintiff  in  error  complains  in  this  action.  Is  this  remedy 
an  adequate  one?  The  statute  provides  that  this  action  of  forcible 
entry  and  detainer  may  be  brought  before  a  justice  of  the  peace  after 
giving  the  parties  in  possession  of  the  lands  three  days'  notice  to  quit ; 
that  no  continuance  for  more  than  eight  days  shall  be  granted  in  the 
case  unless  the  party  made  defendant  shall  give  bond  for  the  payment 
of  rent,  and  if  the  judgment  shall  be  entered  in  favor  of  the  plaintiff, 
a  writ  of  restitution  shall  be  awarded  in  his  favor,  unless  appellate 
proceedings  are  taken  by  defendants,  in  which  case  they  shall  give 
a  bond  to  pay  a  reasonable  rent  for  the  premises  while  they  wrong- 
fully detain  the  same.  This  remedy  is  not  only  an  adequate  one  but 
it  is  a  summary  and  a  speedy  one.  The  relief  demanded  by  the  plain- 
tiff in  error  in  this  injunction  proceeding  is  the  ousting  of  the  plain- 
tiff in  error  from  his  real  estate  so  that  he  may  have  the  exclusive 
possession  of  it.  A  judgment  and  a  writ  of  restitution  in  a  forcible 
entry  and  detainer  suit  would  afford  him  the  same  and  a  more  speedy 
redress  than  a  proceeding  by  injunction.  But  it  is  said  by  the  plaintiff 
in  error  that  he  is  entitled  to  pursue  the  injunction  remedy  because  of 
the  insolvency  of  the  defendants  in  error.     This  argument,  as  applied 


Cb.  3)  TRESPASS.  253 

to  this  case,  is  untenable.  If  tbe  defendants  in  error  are  insolvent, 
then  the  plaintiff  in  error  has  no  redress  for  the  costs  and  expenses 
that  he  may  incur  in  prosecuting  either  an  injunction  suit  or  a  forcible 
entry  and  detainer  suit.  Another  argument  is  that  the  proceeding  by 
injunction  will  avoid  a  multiplicity  of  suits.  This  argument  we  also 
think  untenable.  We  do  not  understand  the  mere  fact  that  there  exist 
divers  causes  of  action  which  may  be  the  foundation  of  as  many  differ- 
ent suits  between  the  parties  thereto  is  a  ground  upon  which  equity 
may  be  called  upon  to  assume  jurisdiction  and  settle  all  such  matters 
in  one  suit.  (Chief  Justice  Beck  in  Richmond  v.  Dubuque  &  Sioux 
City  R.   Co.,  supra.)   The  district  court  was  right  and  its   decree  is 

Afifirmed. 


OWENS  V.  CROSSETT. 

(Supreme  Court  of  Illinois,  1883,  105  III.  354,  357.) 

Walker,  J. — This  was  a  bill  in  equity,  filed  by  appellants,  to  enjoin 
appellee  from  removing  the  fence  on  the  opposite  sides  of  a  field,  where 
it  is  claimed  a  road  enters  and  passes  through  the  field.  Complainants 
deny  that  there  is  any  regular,  legally  laid  out  or  established  road  that 
passes  through  the  field,  and  defendant  claims  there  is,  and  justifies  his 
acts  on  the  ground  that  he  is  a  road  commissioner,  and  has  the  right 
and  that  it  is  his  duty,  to  remove  the  fence  as  an  obstruction,  and  keep 
the  road  open  and  free  to  travel  by  the  public.  These  are  the  grounds 
of  the  controversy. 

It  is  first  urged  in  affirmance  of  the  decree  dismissing  the  bill,  that 
it  will  not  lie  to  enjoin  a  trespass.  Such  is  undoubtedly  the  rule  where 
it  is  a  simple  tt-espass  to  property,  and  is  but  a  single  act,  and  the 
person  committing  or  threatening  the  trespass  is  able  to  respond  in 
damages;  but  where  he  is  insolvent,  and  repeated  trespasses  of  a  grave 
character  are  threatened  to  be  repeated,  equity  will  interfere  to  pre- 
vent the  wrong,  by  restraining  the  threatened  trespass.  Here,  the 
fence  had  been  removed  a  considerable  niunber  of  times,  and  Jt  is 
admitted  that  defendant  had  said  he  would,  and  intended  to,  remove 
it  as  often  as  it  should  be  replaced,  and  that  be  has  no  properly  sub- 
ject to  execution.     This  brings  the  case  wit  bin  tbe  exception  to  the 


254  EEPAEATION    AND    PREVENTION   OF   TORTS.  (Part    1 

general  rule,  and  authorized  the  court  to  entertain  jurisdiction  of  the 
case,  because  there  was  not  an  adequate  remedy  at  law,  and  also  to 
prevent  a  multiplicity  of  suits  at  law.     .     .     . 


HATTON  V.  KANSAS  CITY,  ETC.,  R.  R. 

(Supreme  Court  of   Missouri,   1913,  253  Mo.  660,  160  S.  W.  327.) 

Paris,  J.  This  is  a  proceeding  in  equity  whereby  plaintififs  seek 
to  enjoin  the  defendant  from  entering  certain  real  estate,  averred 
in  the  petition  to  be  an  abandoned  right  of  way  of  defendant,  and^ 
removing  therefrom  certain  right-of-way  fences,  steel  rails,  ties,  bridg- 
es, abutments  and  cattle  guards. 

The  proof  does  not  disclose  wherein  the  railroad  track  or  the  right 
of  way  in  question,  or  the  rails  in  controversy,  differ  from  any  other 
track,  or  right  of  way  or  rails.  Regardless  of  whether  in  the  absence 
of  a  motion  to  make  more  definite  and  certain  the  statement  in  the 
petition  herein  that  the  damage  accruing  to  plaintiffs  is  irreparable, 
is  as  a  conclusion  of  law  sufficient  here  (regard  being  had  to  the  form 
of  the  attack  on  the  petition),  we  are  yet  met  by  the  fact  that  it  is  in- 
cumbent on  plaintiffs  when  they  come  to  make  out  their  case  to  show 
by  testimony  that  their  damage  will  in  fact  be  irreparable. 

It  is  true  that  our  statute  permits  the  use  of  the  remedy  by  injunc- 
tion in  all  cases  where  "an  irreparable  injury  to  real  or  personal  prop- 
erty is  threatened,  and  to  prevent  the  doing  of  any  legal  wrong  what- 
ever, whenever  in  the  opinion  of  the  court  an  adequate  remedy  cannot 
be  afforded  by  an  action  for  damages."  (Sec.  2534,  R.  S.  1909.)  It 
would  be  clear  to  us  even  if  counsel  for  plaintiffs  had  not  ingenuously 
and  candidly  admitted  it,  that  the  real  controversy  here  is  over  the 
rails,  and  such  other  property,  if  any  such  there  be  of  value,  now  re- 
maining on  the  old  right  of  way.  Many  cases  occur  to  us  wherein  the 
necessity  of  an  interference  by  injunction  might  arise  within  the  pur- 
view of  this  section.  For  example,  in  case  of  the  threatened  loss  or 
destruction  of  personal  property,  as  a  wedding  present  or  an  heir- 
loom having  a  special  or  affection  value,  but  whose  real  value  is  negli- 
gible, or  out  of  proportion  to  the  esteem  in  which  the  owner  holds  it ; 
or  in  case  of  the  entry  upon  lands  and  the  threatened  destruction 
of  shade  trees.     These,  we  opine,  as  well  as  many  others  of  similar 


Ch.    3)  PEIVATE     NUISANCE.  255 

sort,  would  be  special  reasons  taking  the  case  out  of  the  general  rule 
and  bringing  it  within  the  statute.     (McPike  v.  West,  71  Mo.  199.) 
But  nothing  is  clearer  than  that  when  we  pass  beyond  the  usual  do- 
main of  equity,  but  invoke  its  interference  because  of  some  other  sort  of 
threatened  irreparable  injury,  or  lack  of  an  adequate  remedy  by  an 
action  for  damages,  the  special  reasons  must  be  shown  by  the  proof. 
That  is  what  the  statute  itself  says  in  effect.     The  proof  must  follow 
the  allegations  of  the  petition  and  create  in  the  mind  of  the  chancellor 
the  opinion  that  "an  adequate  remedy  cannot  be  afforded  by  an  action 
for  damages."     (Weigel  v.  Walsh,  45  Mo.  560.)     There  is  no  such 
proof  in  this  record.     Defendant  is  not  shown  or  averred  to  be  in- 
solvent.    If  there  has  been  by  abandonment,  a  reverter  of  the  right 
of  way  to  the  grantor  thereof,  or  to  the  assignee  of  the  grantor,  and 
defendant  enter  thereon,  will  not  such  entry  constitute  an  actionable 
trespass?     If  defendant  take  up  and  carry  away  and  convert  to  its 
own  use  the  rails  upon  said  right  of  way,  will  not  an  action  lie  for 
conversion,  if  it  be  true  that  the  title  to  these  rails  has  for  any  reason 
passed  to  plaintiffs?    There  is  naught  in  the  proof,  or  for  that  matter 
in  the  petition  either  to  negative  either  of  these  propositions.     .     .     . 


SECTION  III,  PRIVATE  NUISANCE. 


RANKIN  V.  CHARLESS. 

(Supreme  Court  of  Missouri,  1854,  19  Mo.  490.) 

Scott,  J.  .  .  .  The  verdict  establishes  the  fact,  that  the  de- 
fendant has  unlawfully  made  use  of  the  building  of  the  plaintiff 
as  a  support  to  the  joists  of  iiis  liouse,  and  the  only  ([lU'slion  lliat 
arises  is,  what  remedy  or  judgment  is  warranted  in  law  by  the 
verdict  of  the  jury?  The  present  practice  act  having  blended  the 
jurisdiction   of   courts   of   law   and   equity,   it    would   seem   that   the 


25G  EEPAEATIOISr    AND    PBEVENTION   OF   TORTS.  (Part    1 

plaintiff  is  entitled,  in  this  proceeding,  to  all  the  relief  that  would 
formerly  have  been  afforded  both  by  a  court  of  law  and  equity. 

According  to  the  definition  of  a  nuisance,  which  is  said  to  be 
a  wrongful  act  or  neglect  of  one  man,  in  the  use  or  management  of  his 
land,  which  occasions  damages  to  the  possession  or  easement  of  his 
neighbor,  or  to  a  public  easement,  it  may  be  questioned  whether  the 
injury  complained  of  is  a  nuisance  or  not.  Gibbon,  360.  A  pur- 
presture  is  a  species  of  nuisance,  but  that  term  is  only  applied  to  an 
encroachment  on  land  belonging  to  the  public.  Coke,  177.  But,  al- 
though the  act  complained  of  may  not  be  a  technical  nuisance,  to  be 
redressed  by  the  remedies  appropriate  by  law  for  that  species  of 
wrong,  yet  it  is  clearly  an  injury,  entithng  the  party  affected  by  it  to 
an  action  for  its  redress. 

The  record  in  this  case  only  presents  the  petition  of  the  plaintiff, 
the  answer  of  the  defendant,  and  the  verdict  and  judgment.  The  peti- 
tion substantially  alleges  that  the  defendant,  in  building  his  house, 
used  the  wall  of  the  plaintiff's  house,  (who  was  building  simultane- 
ously,) for  a  support  to  the  joists  of  his  building.  The  defense,  was 
a  license  to  use  the  wall.  The  verdict  of  the  jury  awarded  damages 
to  the  plaintiff  for  the  act  complained  of. 

It  seems  that,  in  the  opinion  of  the  court  below,  an  erroneous 
judgment  was  entered  on  this  verdict,  and  so  much  of  it  as  decreed 
that  the  joists  be  removed  from  the  wall,  that  the  holes  made  by  the 
insertion  of  the  joists,  be  filled  with  brick  and  mortar,  as  strongly  as 
it  may  be  done,  and  that  the  plaintiff  have  execution  against  the 
defendant  in  conformity  to  this  judgment  and  decree,  was  stricken 
out,  and  it  was  thus  left  a  judgment  for  the  damage  assessed. 

Even  if  the  injury  complained  of  was  a  nuisance,  yet  it  is  well 
known  that,  in  an  action  on  the  case,  for  such  a  wrong,  no  judgment 
for  the  abatement  of  it  is  given.  That  judgment  was  only  proper  in 
the  old  writ  of  assize  of  nuisance,  and  in  a  quod  pcrmittat  prosternerc. 
3  Black.  219.  But  these  ancient  remedies  have  fallen  into  disuse, 
if  they  have  not  been  abolished,  and  the  action  on  the  case,  and  the  writ 
of  injunction  are  now  the  usual  remedies  for  a  nuisance.  But  courts 
of  equity  do  not,  as  a  matter  of  course,  interfere  in  all  cases  of  this 
kind.  That  interposition  can  only  be  demanded  to  restrain  irrepar- 
able mischief,  or  to  suppress  oppressive  or  interminable  litigation,  or 
to  prevent  a  multiplicity  of  suits. 


Cll,    3)  PRIVATE     NUISANCE.  257 

No  injunction  will  be  granted  unless  the  act  done  or  contemplated 
is,  or  will  clearly  be,  a  nuisance.  If  a  party  sees  a  nuisance  in  progress, 
and  does  not  interfere  to  prevent  it,  he  will  forfeit  his  right  to  assist- 
ance from  a  court  of  equity.  Jones  v.  Royal  Canal  Co.,  2  Molloy, 
319;  Williams  v.  Earl  of  Jersey,  I  Craig  &  Phillips,  91;  Gibbon  on 
Nuisances,  403. 

As  the  record  is  barren  of  all  the  circumstances  attending  this 
transaction,  no  reason  is  perceived  why  if  the  extraordinary  powers  of 
a  court  of  chancery  are  exerted  in  this  case,  they  may  not  in  every 
complaint  of  a  nuisance.  It  is  allowable  for  a  party  to  take  the  redress 
of  wrongs  of  this  character  into  his  own  hands.  This  was  a  case 
eminently  proper  for  the  exercise  of  such  a  right.  Had  the  injury 
been  redressed  by  the  party  at  the  moment  it  was  done,  the  conse- 
quences would  have  been  by  no  means  so  serious  as  they  must  be  at 
this  time,  by  granting  the  relief  prayed.  The  injury  has  been  done. 
It  cannot  now  be  prevented.     It  may  be  redressed. 

Whether  it  would  be  more  equitable  to  let  it  remain,  and  leave 
the  plaintiff  to  his  remedy  at  law,  we  cannot  say,  as  the  facts  neces- 
sary to  a  determination  of  that  question  are  not  before  us.  To  tear 
down  the  house  of  the  defendant  now,  might  look  more  like  revenge 
than  the  legal  reparation  of  an  injury.  It  is  no  part  of  the  business 
of  tribunals  of  justice  to  minister  to  the  angry  passion  of  men.  If 
the  defendant  will  wantonly  persist  in  his  encroachments  on  the  rights 
of  the  plaintiff,  it  is  in  the  power  of  the  courts  of  law  to  award  such 
damages  as  will  arouse  him  to  a  sense  of  his  continued  injustice. 

The  other  judges  concurring,  the  judgment  is  affirmed. 


WHIPPLE  V.  McINTYRE. 

(Court  of  Appeals  of  Missouri,  189G,  69  Mo.  App.  397.) 

Bland,  P.  J.  William  A.  Whipple  brought  this  suit  against  Robert 
J.  Mclntyre  for  keeping  upon  his  lot  a  pig  pen  so  near  to  the  dwelling 
house  of  Whipple  as  to  be  injurious  to  the  hcallh  and  lo  dclract  from 
the  comfort  of  Whipple  and  his  family.     ... 

The  petition  was  treated  as  a  bill  in  equity,  as  for  injunction,  and 
was  so  tried  before  the  court.  After  Ihe  evidence  was  all  in,  llic  C(mrt 

1  Eq.— 17 


258  EEPAEATION    AND    PEEVENTION    OF    TORTS.  (Part    1 

entered  a  judgment  dismissing  the  bill  for  want  of  equity.  The  alle- 
gation of  damages  was  ignored  throughout  the  trial  and  no  finding 
was  made  upon  that  issue.  This  was  a  misconception  of  the  cause 
of  action,  as  stated  in  the  petition.  The  action  is  for  damages  on  ac- 
count of  the  alleged  nuisance,  and  a  prayer  for  injunction  to  prevent 
its  continuance.  The  petition  does  not  join  two  separate  causes  of 
action  in  one  count.  It  states  but  one  cause  of  action  (the  maintenance 
of  a  private  nuisance),  and  asks  double  relief,  the  assessment  of  dam- 
ages, and  the  injunctive  process  of  the  court  to  prevent  the  contin- 
uance of  the  nuisance,  from  which  damages  would  continue  to  daily 
accrue.  In  Ware  v.  Johnson,  55  Mo.  500,  it  is  intimated  that  this 
lands  in  considerable  quantities,  and  that  the  overflow  has  continued 
up  to  the  filing  of  the  bill,  and  that  it  could  come  from  no  other  source. 
The  weight  of  the  evidence  supports  this  view.  The  injury  to  the 
complainant  is  irreparable  not  in  the  sense  that  no  amount  of  money 
could  compensate  him  for  it,  but  as  a  deprivation  of  the  enjoyment 
may  be  done.  Judge  Bliss  in  his  work  on  Code  Pleading,  speaking  of 
cases  of  this  kind,  says:  "The  double  relief  is  improperly  spoken 
of  as  a  union  of  two  causes  of  action,  .  .  .  Under  the  Code  there 
is  but  one  count,  and  one  form  of  action,  and  by  a  single  complaint 
the  aggrieved  party  may  have  all  the  relief  to  which  he  is  entitled." 
Bliss,  Code  Pleading  (2  Ed.),  sees.  166,167,168,169,170,171. 

The  evidence  in  this  case  abundantly  establishes  the  fact  that  Mc- 
Intyre  maintained  on  his  premises  a  hog  pen,  within  a  few  feet  of 
Whipple's  dwelling  house,  and  was  maintaining  it  at  the  date  of  the 
trial.  That  noxious  and  ofifensive  odors  from  this  pen  polluted  the 
air  (when  allowed  to  circulate)  in  the  rooms  of  Whipple's  dwelling, 
is  clearly  and  abundantly  proven.  That  a  pigsty,  situated  as  this  was, 
with  reference  to  Whipple's  residence,  was  a  nuisance  per  se,  scarcely 
needs  authority  to  support  the  proposition.  Ordinary  experience  and 
observation  is  sufficient  to  convince  any  one,  with  his  olfactory  nerves 
in  a  normal  condition,  that  a  pig  pen,  within  fourteen  to  eighteen  feet 
of  a  dwelling  house,  with  windows  and  doors  opening  upon  it,  would 
materially  interfere  with  the  ordinary  comforts  and  conveniences  of 
human  existence.  This,  according  to  modern  law,  is  sufficient  to  con- 
stitute a  private  nuisance.  Webb's  Pollock  on  Torts,  496.  But  we 
have  judicial  authority  for  pronouncing  Mclntyre's  pigsty  a  nuisance 
per  se.     Broder  v.  Gaillard,  45  L.  J.  Ch.  414;  Reinhart  v.  Mentasti, 


Cll.    3)  PRIVATE     NUISANCE.  259 

58  Iv.  J.  Ch.  787 ;  Webb's  Pollock  on  Torts,  500 ;  Kirchgraber  v.  Lloyd, 

59  Mo.  App.  59,  and  authorities  therein  cited ;  2  Wood  on  Nuisances, 
pp.  792,  793. 

It  is  contended  by  respondent  that  appellant  can  not  invoke  the 
injunctive  process  of  the  court,  until  he  has  first  established  his  right 
by  law.  This  doctrine  is  supported  by  many  cases,  but  it  has  no  ap- 
plication in  a  case  like  this  where  the  law  denounces  the  thing  com- 
plained of  as  a  nuisance  per  sc.  McDonough  v.  Roberts,  60  Mo.  App. 
156,  and  authorities  cited.  The  law  has  pronounced  in  advance,  in 
this  case,  the  pig  pen,  situated  as  this  one  is,  with  reference  to  appel- 
lant's dwelling,  a  nuisance.  The  verdict  of  a  jury  finding  it  to  be  what 
the  law  has  already  pronounced  it  to  be,  would  establish  no  legal  right 
that  appellant  did  not  have  before  the  verdict. 

Under  the  evidence  and  pleading,  the  plaintiff  was  entitled  to  his 
assessment  of  damages,  but  for  a  nominal  sum  only,  as  no  particular 
damages  were  proven.  Following  the  spirit  of  the  law  as  laid  down 
by  Judge  Sherwood  in  Paddock  v.  Somes,  102  Mo.  226,  we  reverse 
the  judgment  and  remand  the  case,  with  directions  to  the  circuit  court 
to  enter  judgment  for  plaintiff  for  one  cent  damages,  and  to  perpetual- 
ly enjoin  and  restrain  defendant  from  further  maintaining  the  nuisance 
in  question. 

All  concur.     Judge  Biggs  in  the  result. 

Biggs,  J.  (Concurring). — The  opinion  holds  that  the  action  is  at 
law  for  damages  with  a  prayer  for  injunctive  relief.  I  concur  in  this. 
I  also  concur  in  the  direction  to  enter  a  judgment  for  plaintiff  for 
nominal  damages,  and  for  the  abatement  of  the  nuisance,  for  the  rea- 
sons :  first,  that  the  undisputed  physical  facts  prove  that  the  pigstry, 
however  clean  it  might  have  been  kept,  was  in  such  close  proximity 
to  the  plaintiff's  dwelling  house  as  necessarily  to  render  it  a  nuisance ; 
and  second,  that  counsel  for  plaintiff  stated  at  the  argument  that  the 
main  object  of  the  suit,  was  to  abate  the  nuisance,  and  not  to  recover 
substantial  damage.  The  case  of  Paddock  v.  Somes,  102  Mo.  226, 
furnishes  no  authority  whatever  for  the  disposition  made  of  the  case. 


GILES  v.  WALKER. 

(Supreme   Court  of  Judicature,   1890,   24    Q.    13.   D.    tiod.) 
Appeal    from  the   Leicester  County   Court. 


260  REPAEATTON    AND    PEEVENTIOISr   OF   TORTS.  (Part    1 

The  defendant,  a  farmer,  occupied  land  which  had  originally  been 
forest  land,  but  which  had  some  years  prior  to  1883,  when  the  de- 
fendant's occupation  of  it  commenced,  been  brought  into  cultivation 
by  the  then  occupier.  The  forest  land  prior  to  cultivation  did  not 
bear  thistles ;  but  immediately  upon  its  being  cultivated  thistles  sprang 
up  all  over  it.  The  defendant  neglected  to  mow  the  thistles  periodically 
so  as  to  prevent  them  from  seeding,  and  in  the  years  1887  and  1888 
there  were  thousands  of  thistles  on  his  land  in  full  seed.  The  con- 
sequence was  that  the  thistle  seeds  were  blown  by  the  wind  in  large 
quantities  on  to  the  adjoining  land  of  the  plaintiff,  where  they  took 
root  and  did  damage.  The  plaintiff  sued  the  defendant  for  such 
damage  in  the  county  court.  The  judge  left  to  the  jury  the  ques- 
tion whether  the  defendant  in  not  cutting  the  thistles  had  been  guilty 
of  negligence.  The  jury  found  that  he  was  negligent,  and  judgment 
was  accordingly  entered  for  the  plaintiff.     The  defendant  appealed. 

Toller,  for  the  defendant.  The  facts  of  this  case  do  not  estab- 
lish any  cause  of  action.  The  judge  was  wrong  in  leaving  the  question 
of  negligence  to  the  jury.  Before  a  person  can  be  charged  with 
negligence,  it  must  be  shown  that  there  is  a  duty  on  him  to  take  care. 
But  here  there  is  no  such  duty.  The  defendant  did  not  bring  the 
thistles  on  to  his  land;  they  grew  there  naturally.  (He  was  stopped 
by  the  Court.) 

R,  Bray,  for  the  plaintiff.  If  the  defendant's  predecessor  had  left 
the  land  in  its  original  condition  as  forest  land  the  thistles  would 
never  have  grown.  By  bringing  it  into  cultivation,  and  so  disturbing 
the  natural  condition  of  things,  he  caused  the  thistles  to  grow,  there- 
by creating  a  nuisance  on  the  land  just  as  much  as  if  he  had  inten- 
tionally grown  them.  The  defendant,  by  entering  into  occupation 
of  the  land  with  the  nuisance  on  it,  was  under  a  duty  to  prevent 
damage  from  thereby  accruing  to  his  neighbour.  The  case  resembles 
that  of  Crowhurst  v.  Amersham  Burial  Board,  4  Ex.  D.  5,  where 
the  defendants  were  held  responsible  for  allowing  the  branches  of 
their  yew  trees  to  grow  over  their  boundary,  whereby  a  horse  of  the 
plaintiff,  being  placed  at  pasture  in  the  adjoining  field,  ate  some  of 
the  yew  twigs  and  died. 

Lord  ColkridgE.  C.  J.  I  never  heard  of  such  an  action  as  this. 
There   can  be   no   duty   as   between   adjoining   occupiers   to   cut   the 


Cll.    3)  PRIVATE     NUISANCE.  261 

thistles,  which  are  the  natural  growth  of  the  soil.     The  appeal  must 
be  allowed. 

Lord  Esher,  ]\I.  R.     I  am  of  the  same  opinion. 


STURGES  V.  BRIDGMAN. 

(In  Chancery,  1879,  11  Ch.  Div.  852,  862.) 

ThEIisiger,  L.  J.  The  Defendant  in  this  case  is  the  occupier,  for 
the  purpose  of  his  business  as  a  confectioner,  of  a  house  in  Wigmore 
Street.  In  the  rear  of  the  house  is  a  kitchen,  and  in  that  kitchen  there 
are  now,  and  have  been  for  over  twenty  years,  two  large  mortars  in 
which  the  meat  and  other  materials  of  the  confectionery  are  pounded. 
The  Plaintiff,  who  is  a  physician,  is  the  occupier  of  a  house  in  Wim- 
pole  Street,  which  until  recently  had  a  garden  at  the  rear,  the  wall 
of  which  garden  was  a  party-wall  between  the  Plaintiff's  and  the 
Defendant's  premises,  and  formed  the  back  wall  of  the  Defendant's 
kitchen.  The  Plaintiff  has,  however,  recently  built  upon  the  site  of 
the  garden  a  consulting-room  one  of  the  side  walls  of  which  is  the 
wall  just  described.  It  has  been  proved  that  in  the  case  of  the  mortars, 
before  and  at  the  time  of  action  brought,  a  noise  was  caused  which 
seriously  inconvenienced  the  Plaintiff'  in  the  use  of  his  consulting- 
room,  and  which,  unless  the  Defendant  had  acquired  a  right  to  im- 
pose the  inconvenience,  would  constitute  an  actionable  nuisance.  The 
Defendant  contends  that  he  had  acquired  the  right,  either  at  Common 
Law  or  under  the  Prescription  Act,  by  uninterrupted  user  for  more 
than  twenty  years. 

In  deciding  this  question  one  more  fact  is  neceessary  to  be  stated. 
Prior  to  the  erection  of  the  consulting-room  no  material  annoyance 
or  inconvenience  was  caused  to  the  Plaintiff  or  to  any  previous  oc- 
cupier of  the  Plaintiff's  house  by  what  the  Defendant  did.  It  is  true 
that  the  Defendant  in  the  7th  paragraph  of  his  affidavit  speaks  of 
an  invalid  lady  who  occupied  the  house  upon  one  occasion,  about  thirty 
years  before,  requested  him  if  possible  to  discontinue  the  use  of  the 
mortars  before  eight  o'clock  in  tlie  morning;  and  it  is  true  also  that 
there  is  some  evidence  of  the  garden  wall  having  been  subjected  to 
vibration,  but  this  vibration,  even  if  it  existed  at  all,  was  so  slight,  and 
the  complaint,  if  it  could  be  called  a  compkiint,  of  the  invalid  lady, 
and  can  be  looked  upon  as  evidence,  was  of  so  trifling  a  character, 
that,  upon  the  maxim  dc  7nijiiinis  noii  curat  lex,  we  arrive  at  the  con- 


262  REPARATION    AND    TEEVENTION    OF    TORTS.  (Part    1 

elusion  that  the  Defendant's  acts  would  not  have  given  rise  to  any 
proceedings  either  at  law  or  in  equity.    Here  then  arises  the  objection 
to  the  acquisition  by  the  Defendant  of  any  easement.    That  which  was 
done  by  him  was  in  its  nature  such  that  it  could  not  be  physically 
interrupted;  it  could  not  at  the  same  time  be  put  a  stop  to  by  action. 
Can  user  which  is  neither  preventible  nor  actionable  found  an  ease- 
ment?   We  think  not.    The  question,  so  far  as  regards  this  particular 
easement  claimed,  is  the  same  question  whether  the  Defendant  en- 
deavors to  assert  his  right  by  Common  Law  or  under  the  Prescrip- 
tion Act.     That  Act  fixes  periods   for  the  acquisition  of   easements, 
but,  except  in  regard  to  the  particular  easement  of  light,,  or  in  regard 
to  certain   matters   which  are   immaterial   to  the   present   inquiry,   it 
does  not  alter  the  character  of  easements,  or  of  the  user  or  enjoy- 
ment by  which  they  are  acquired.     This  being  so,  the  laws  govern- 
ing the  acquisition  of  easements  by  user  stands  thus:     Consent  or 
acquiescence  of  the  owner  of  the  servient  tenement  lies  at  the  root 
of  prescription,  and  of  the  fiction  of  a  lost  grant,  and  hence  the  acts 
or  user,  which  go  to  the  proof  of  either  the  one  or  the  other,  must 
be,  in  the  language  of  the  civil  law,  nee  vi  nee  elam  ncc  prccario;  for 
a  man  cannot,  as  a  general  rule,  be  said  to  consent  to  or  acquiesce  in 
the  acquisition  by  his  neighbour  of  an  easement  through  an  enjoyment 
of  which  he  has  no  knowledge,  actual  or  constructive,  or  which  he 
contests  and  endeavors  to  interrupt,  or  which  he  temporarily  licenses. 
It  is  a  mere  extension  of  the  same  notion,  or  rather  it  is  a  principle 
into  which  by  strict  analysis  it  may  be  resolved,  to  hold,  that  an  enjoy- 
ment which  a  man  cannot  prevent  raises  no  presumption  of  consent 
or  acquiescence.    Upon  this  principle  it  was  decided  in  Webb  v.  Bird 
(13  C.  B.  (N.  S.)  841)  that  currents  of  air  blowing  from  a  particular 
quarter  of  the  compass,  and  in  Chasemore  v.  Richards  (7  H.  L.  C. 
349)    that  subterranean  water  percolating  through  the   strata   in  no 
known  channels,  could  not  be  acquired  as  an  easement  by  user;  and 
in  Angus  v.  Dalton   (4  Q.  B.  D.  162)   a  case  of  lateral  support  of 
buildings  by  adjacent  soil,  which  came  on  appeal  to  this  Court,  the 
principle   was   in   no   way    impugned,    although    it    was   held   by   the 
majority  of  the  court  not  to  be    applicable    so    as    to    prevent    the 
acquisition  of  that  particular  easement.     It  is  a  principle  which  must 
be  equally  appropriate  to  the  case  of  affirmative  as  of  negative  ease- 
ments ;  in  other  words,  it  is  equally  unreasonable  to  imply  your  con- 


Cll.    3)  PRIVATE     NUISANCE.  263 

sent  to  your  neighbor  enjoying  something  which  passes  from  your 
tenement  to  his,  as  to  his  subjecting  your  tenement  to  something  which 
comes  from  his,  when  in  both  cases  you  have  no  power  of  prevention. 
But  the  affirmative  easement  differs  from  the  negative  easement  in 
this,  that  the  latter  can  under  no  circumstances  be  interrupted  except 
by  acts  done  upon  the  servient  tenement,  but  the  former,  constituting, 
as  it  does,  a  direct  interference  with  the  enjoyment  by  the  servient 
owner  of  his  tenement,  may  be  the  subject  of  legal  proceedings  as 
well  as  of  physical  interruption.  To  put  concrete  cases — the  passage 
of  light  and  air  to  your  neighbour's  windows  may  be  physically  in- 
terrupted by  you,  but  gives  you  no  legal  grounds  of  complaint  against 
him.  The  passage  of  water  from  his  land  on  to  yours  may  be  phys- 
ically interrupted,  or  may  be  treated  as  a  trespass  and  made  the  ground 
of  action  for  damages,  or  for  an  injunction,  or  both.  Noise  is  sim- 
ilar to  currents  of  air  and  the  flow  of  subterranean  and  uncertain 
streams  in  its  practical  incapability  of  physical  interruption,  but  it 
differs  from  them  in  its  capability  of  grounding  an  action.  Webb 
v.  Bird  and  Chasemore  v.  Richards  are  not,  therefore,  direct  au- 
thorities governing  the  present  case.  They  are,  however,  illustra- 
tions of  the  principle  which  ought  to  govern  it ;  for  until  the  noise, 
to  take  this  case,  became  an  actionable  nuisance,  which  it  did  not  at 
any  time  before  the  consulting-room  was  built,  the  basis  of  the  pre- 
sumption of  the  consent,  viz.,  the  power  of  prevention  physically 
or  by  action,  was  never  present.. 

It  is  said  that  if  this  principle  is  applied  in  cases  like  the  present, 
and  were  carried  out  to  its  logical  consequences,  it  would  result  in 
the  most  serious  practical  inconveniences,  for  a  man  might  go — say 
into  the  midst  of  the  tanneries  of  Bermondsey,  or  into  any  other 
locality  devoted  to  a  particular  trade  or  manufacture  of  a  noisy  or 
unsavory  character,  and,  by  building  a  private  residence  upon  a  vacant 
piece  of  land,  put  a  stop  to  such  trade  or  manufacture  altogether. 
The  case  also  is  put  of  a  blacksmith's  forge  built  away  from  all 
habitations,  but  to  which,  in  course  of  time,  habitations  approach. 
We  do  not  think  that  either  of  these  hypothetical  cases  presents  any 
real  difficulty.  As  regards  the  first,  it  may  be  answered  that  whether 
anything  is  a  nuisance  or  not  is  a  question  to  be  determined,  not 
merely  by  an  abstract  consideration  of  the  thing  itself,  but  in  reference 
to  its  circumstances ;  what  would  be  a  nuisance  in  Belgravc  Square 


264  REPAKATION    AND    PREVENTION    OF    TORTS.  (Part    1 

would  not  necessarily  be  so  in  Bermondsey ;  and  where  a  locality 
is  devoted  to  a  particular  trade  or  manufacture  carried  on  by  the 
traders  or  manufacturers  in  a  particular  and  established  manner  not 
constituting  a  public  nuisance,  Judges  and  juries  would  be  justified  in 
finding,  and  may  be  trusted  to  find,  that  the  trade  or  manufacture  so 
carried  on  in  that  locality  is  not  a  private  or  actionable  wrong.  As  re- 
gards the  blacksmith's  forge,  that  is  really  an  idem  per  idem  case  with 
the  present.  It  would  be  on  the  one  hand  in  a  very  high  degree  unrea- 
sonable and  undesirable  that  there  should  be  a  right  of  action  for  acts 
which  are  not  in  the  present  condition  of  the  adjoining  land,  and 
possibly  never  will  be  any  annoyance  or  inconvenience  to  either  its 
owner  or  occupier ;  and  it  would  be  on  the  other  hand  in  an  equal  degree 
unjust,  and,  from  a  public  point  of  view,  inexpedient  that  the  use  and 
value  of  the  adjoining  land  should,  for  all  time  and  under  all  circum- 
stances, be  restricted  and  diminished  by  reason  of  the  continuance  of 
acts  incapable  of  physical  interruption,  and  which  the  law  gives  no 
power  to  prevent.  The  smith  in  the  case  supposed  might  protect  himself 
by  taking  a  sufficient  curtilage  to  ensure  what  he  does  from  being 
at  any  time  an  annoyance  to  his  neighbor,  but  the  neighbour  himself 
would  be  powerless  in  the  matter.  Individual  cases  of  hardship  may 
occur  in  the  strict  carrying  out  of  the  principle  upon  which  we  found 
our  judgment,  but  the  negation  of  the  principle  would  lead  even  more 
to  the  individual  hardship,  and  would  at  the  same  time  produce  a 
prejudicial  effect  upon  the  development  of  land  for  residential  pur- 
poses. The  Master  of  the  Rolls  in  the  court  below  took  substantially 
the  same  view  of  the  matter  as  ourselves  and  granted  the  relief 
which  the  Plaintiff  prayed  for,  and  we  are  of  opinion  that  his  order 
is  right  and  should  be  affirmed,  and  that  this  appeal  should  be  dis- 
missed with  costs. 


SAWYER  V.  DAVIS. 

(Supreme  Court  of  Massachusetts,  1884,  136  Mass.  239.) 

Bill  of  Review,  alleging  the  following  facts : 

The  plaintiffs,  who  were  manufacturers  in  Plymouth,  were  re- 
strained by  a  decree  of  this  court,  made  on  October  1,  1881,  upon 
a   bill   in   equity   brought   by   the   present    defendants,    from    ringing 


Ch.    3)  PRIVATE    NUISANCE.  2G5 

a  bell  on  their  mill  before  the  hour  of  six  and  one  half  o'clock  in  the 
morning;  which  decree  was  affirmed  by  the  full  court  on  September 
7,  1882.  (See  Davis  v.  Sawyer,  133  Mass.  289.)  On  March  28,  1883, 
the  Legislature  passed  an  act,  which  took  effect  upon  its  passage, 
as  follows:  "Manufacturers  and  others  employing  workmen  are 
authorized,  for  the  purpose  of  giving  notice  to  such  employees,  to 
ring  bells  and  use  whistles  and  gongs  of  such  size  and  weights,  in 
such  manner  and  at  such  hours  as  the  board  of  aldermen  of  cities 
and  selectmen  of  towns  may  in  writing  designate."  (St.  1883,  c.  84). 
On  April  18,  1883,  the  selectmen  of  Plymouth  granted  to  the  plain- 
tiffs a  written  license  to  ring  the  bell  on  their  mill  in  such  manner,  and 
at  such  hours,  beginning  at  five  o'clock  in  the  morning,  as  they  were 
accustomed  to  do  prior  to  the  injunction  of  this  court. 

The  prayer  of  the  bill  was  that  the  injunction  might  be  dissolved, 
or  that  the  decree  might  be  so  modified  as  to  enable  the  plaintiffs  to 
act  under  their  license  without  violating  the  decree  of  this  court;  and 
for  other  and  further  relief. 

The  defendants  demurred  to  the  bill,  assigning,  among  other  grounds 
of  demurrer,  that  the  St.  of  1883,  c.  84,  was  unconstitutional,  so  far 
as  applicable  to  the  defendants.     .     .     . 

C.  Allex,  J.  Nothing  is  better  established  than  the  power  of 
the  Legislature  to  make  what  are  called  police  regulations,  declaring 
in  what  manner  property  shall  be  used  and  enjoyed,  and  business 
carried  on,  with  a  view  to  the  good  order  and  benefit  of  the  com- 
munity, even  although  they  may  to  some  extent  interfere  with  the 
full  enjoyment  of  private  property,  and  although  no  compensation 
is  given  to  a  person  so  inconvenienced.  Bancroft  v.  Cambridge,  126 
Mass.  438,  441.  In  most  instances,  the  illustrations  of  the  proper 
exercise  of  this  power  are  found  in  rules  and  regulations  restraining 
the  use  of  property  by  the  owner,  in  such  a  manner  as  would  cause 
disturbance  and  injury  to  others.  But  the  privilege  of  continuing 
in  the  passive  enjoyment  of  one's  own  property,  in  the  same  manner 
as  formerly,  is  subject  to  a  like  limitation;  and  with  the  increase  of 
population  in  a  neighborhood,  and  the  advance  and  development  of 
business,  the  quiet  and  seclusion  and  customary  enjoyment  of  homes 
arc  neces.sarily  interfered  with,  until  it  becomes  a  question  how  the 
right  which  each  person  has  of  prosecuting  his  lawful  business  in 
a  reasonable  and  i)roper  manner  shall  be  made  consistent  with 
the  other  right  which  each  person  has  to  be  free  from  unreasonable 


266'  KEPAEATION    AND    PREVENTION    OF    TORTS.  (Part    1 

disturbance  in  the  enjoyment  of  his  property.  Merrifield  v.  Wor- 
cester, 110  Mass.  216,  219.  In  this  conflict  of  rights,  police  regulations 
by  the  Legislature  find  a  proper  office  in  determining  how  far  and 
under  what  circumstances  the  individual  must  yield  with  a  view  to 
the  general  good.  For  example,  if,  in  a  neighborhood  thickly  oc- 
cupied by  dwelling-houses,  any  one,  for  his  own  entertainment  or 
the  gratification  of  a  whim,  were  to  cause  bells  to  be  rung  and  steam- 
whistles  to  be  blown  to  the  extent  that  is  usual  with  the  bells  and 
steam-whistles  of  locomotive  engines  near  railroad  stations  in  large 
cities,  there  can  be  no  doubt  that  it  would  be  an  infringement  of  the 
rights  of  the  residents,  for  which  they  could  find  ample  remedy  and 
vindication  in  the  courts.  But  if  the  Legislature,  with  a  view  to  the 
safety  of  life,  provides  that  bells  shall  be  rung  and  whistles  sounded, 
under  those  circumstances,  persons  living  near  by  must  necessarily 
submit  to  some  annoyance  from  this  source,  which  otherwise  they 
would  have  a  right  to  be  relieved  from. 

It  is  ordinarily  a  proper  subject  for  legislative  discretion  to  de- 
termine by  general  rules  the  extent  to  which  those  who  are  engaged 
in  customary  and  lawful  and  necessary  occupations  shall  be  required 
or  allowed  to  give  signals  or  warnings  by  bells  or  whistles,  or  other- 
wise, with  a  view  either  to  the  public  safety,  as  in  the  case  of  rail- 
roads, or  to  the  necessary  or  convenient  operation  and  management 
of  their  own  works ;  and  ordinarily  such  determination  is  binding 
upon  the  courts,  as  well  as  upon  citizens  generally.  And  when  the 
Legislature  directs  or  allows  that  to  be  done  which  would  otherwise 
be  a  nuisance,  it  will  be  valid,  upon  the  ground  that  the  Legislature 
is  ordinarily  the  proper  judge  of  what  the  public  good  requires,  unless 
carried  to  such  an  extent  that  it  can  fairly  be  said  to  be  an  un- 
wholesome and  unreasonable  law.  Bancroft  v.  Cambridge,  126  Mass. 
441.  It  is  accordingly  held  in  many  cases,  and  is  now  a  well-estab- 
lished rule  of  law,  at  least  in  this  Commonwealth,  that  the  incidental 
injury  which  results  to  the  owner  of  property  situated  near  a  rail- 
road, caused  by  the  necessary  noise,  vibration,  dust,  and  smoke  from 
the  passing  trains,  which  would  clearly  amount  to  an  actionable  nui- 
sance if  the  operation  of  the  railroad  were  not  authorized  by  the 
Legislature,  must,  if  the  running  of  the  trains  is  so  authorized,  be 
borne  by  the  individual,  without  compensation  or  remedy  in  any 
form.  The  legislative  sanction  makes  the  business  lawful,  and  defines 
what  must  be  accepted  as  a  reasonable  use  of  property  and  exercise 


Cll.    3)  PRIVATE     NUISANCE.  267 

of  rights  on  the  part  of  the  railroad  company,  subject  always  to  the 
qualification  that  the  business  must  be  carried  on  without  negligence 
or  unnecessary  disturbance  of  the  rights  of  others.  And  the  same 
rule  extends  to  other  causes  of  annoyance  which  are  regulated  and 
sanctioned  by  law.     .     .     . 

Slight  infractions  of  the  natural  rights  of  the  individual  may  be 
sanctioned  by  the  Legislature  under  the  proper  exercise  of  the  police 
power,  with  a  view  to  the  general  good.  Grave  ones  will  fall  within 
the  constitutional  limitation  that  the  Legislature  is  only  authorized 
to  pass  reasonable  laws.  The  line  of  distinction  cannot  be  so  laid 
down  as  to  furnish  a  rule  for  the  settlement  of  all  cases  in  advance. 
The  difficulty  of  marking  the  boundaries  of  this  legislative  power, 
or  of  prescribing  limits  to  its  exercise,  was  declared  in  Commonwealth 
v.  Alger,  7  Cush.  53,  85,  and  is  universally  recognized.  Courts,  how- 
ever, must  determine  the  rights  of  parties  in  particular  cases  as  they 
arise ;  always  recognizing  that  the  ownership  of  property  does  not  of 
itself  imply  the  right  to  use  or  enjoy  it  in  every  possible  manner, 
without  regard  to  corresponding  rights  of  others  as  to  the  use  and 
enjoyment  of  their  property;  and  also  that  the  rules  of  the  common 
law,  which  have  from  time  to  time  been  established,  declaring  or 
limiting  such  rights  of  use  and  enjoyment,  may  themselves  be  changed 
as  occasion  may  require.    Munn  v.  Illinois,  94  U.  S.  113,  134. 

In  the  case  before  us,  looking  at  it  for  the  present  without  regard 
to  the  decree  of  this  court  in  the  former  case  between  these  parties, 
we  find  nothing  in  the  facts  set  forth  which  show  that  the  statute 
relied  on  as  authorizing  the  plaintiffs  to  ring  their  bell  (St.  1883,  c. 
84)  should  be  declared  unconstitutional.  It  is  virtually  a  license  to 
manufacturers,  and  others  employing  workmen,  to  carry  on  their  busi- 
ness in  a  method  deemed  by  the  Legislature  to  be  convenient,  if  not 
necessary,  for  the  purpose  of  giving  notice,  by  ringing  bells,  and  using 
whistles  and  gongs,  in  such  manner  and  at  such  times  as  may  be 
designated  in  writing  by  municipal  officers.  In  character,  it  is  not 
unlike  numerous  other  instances  to  be  found  in  our  statutes,  where 
the  Legislature  has  itself  fixed,  or  has  authorized  municipal  or  other 
boards  or  officers  to  fix,  the  places,  times,  and  methods  in  which  oc- 
cupations may  be  carried  on,  or  acts  done,  which  would  naturally  be 
attended  with  annoyance  to  individuals.  The  example  of  bells  and 
whistles  on  locomotive  engines  has  already  been  mentioned.    Reference 


268  KEPARATIOISr    AND    PREVENTION    OF    TORTS.  (Part    1 

may  also  be  made  to  the  statutes  regulating  the  use  of  stationery 
steam  engines,  the  places  and  manner  of  manufacturing  or  keeping 
petroleum,  of  earring  on  other  offensive  trades  and  occupations,  of 
storing  gunpowder,  and  of  establishing  hospitals,  stables,  and  bowling 
alleys.     .     .     . 

It  is  then  argued  that  the  Legislature  cannot  legalize  a  nuisance, 
and  cannot  take  away  the  rights  of  the  defendants  as  they  have  been 
ascertained  and  declared  by  this  court;  and  this  is  undoubtedly  true, 
so  far  as  such  rights  have  become  vested.     For  example,  if  the  plain- 
tiff under  an  existing  rule  of  law  has  a  right  of  action  to  recover  dam- 
ages, for  a  past  injury  suffered  by  him,  his  remedy  cannot  be  cut  off 
by  an  act  of  the  Legislature.    So,  also,  if,  in  a  suit  in  equity  to  restrain 
the  continuance  of  a  nuisance,  damages  have  been  awarded  to  him, 
or  costs  of  suit,  he  would  have  an  undoubted  right  to  recover  them, 
notwithstanding  the  statute.     But  on  the  other  hand,  the  Legislature 
may  define  what  in  the  future  shall  constitute  a  nuisance,  such  as  will 
entitle  a  person  injured  thereby  to  a  legal  or  equitable  remedy,  and 
may  change  the  existing  common-law  rule  upon  the  subject.     It  may 
declare,  for  the  future,  in  what  manner  a  man  may  use  his  property 
or  carry  on  a  lawful  business  without  being  liable  to  an  action  in  con- 
sequence thereof ;  that  is,  it  may  define  what  shall  be  a  lawful  and 
reasonable  mode  of  conduct.     This  legislative  power  is  not  wholly 
beyond  the  control  of  the  courts,  because  it  is  restrained  by  the  con- 
stitutional provision  limiting  it  to   wholesome   and   reasonable   laws, 
of  w^hich  the  court  is  the  final  judge,  but,  within  this  limitation,  the 
exercise   of   the  police   powc   of   the   Legislature   will   apply  to   all 
within  the  scope  of  its  terms  ^nd  spirit.     The  fact  that  the  rights  of 
citizens,  as  previously  existing,  are  changed,  is  a  result  which  always 
happens;  it  is  indeed  in  order  to  change  those  rights  that  the  police 
power  is  exercised.     So  far  as  regards  the  rights  of  parties  accruing 
after  the  date  of  the  statute,  they  are  to  be  governed  by  the  statute ; 
their  rights  existing  prior  to  that  date  are  not  affected  by  it.     To  illus- 
trate this  view,  let  it  be  supposed  that  the  case  between  the  present 
parties   in  its   original   stage   had   been   determined   in    favor   of   the 
manufacturers,  under  which  decision  they  would  have  had  a  right 
to   ring  their  bell;   and  that   afterwards   a   statute   had   been   passed 
providing  that  manufacturers   should   not   ring   bells   except   at   such 
hours  as  might  be  approved  by  the  selectmen;  and  that  these  manu- 


Cll.    3)  PRIVATE     NUISANCE.  269 

facturers  had  then  proceeded  to  ring  their  bell  at  other  hours,  not 
included  in  such  approval.  It  certainly  could  not  be  said  that  they 
had  a  vested  right  to  do  so,  under  the  decision  of  the  court. 

The  injunction  which  was  awarded  by  the  court,  upon  the  facts 
which  appeared  at  the  hearing,  did  not  imply  a  vested  right  in  the 
present  defendants  to  have  it  continued  permanently.  Though  a 
final  determination  of  the  case  before  the  court,  and  though  binding 
and  imperative  upon  the  present  plaintiffs  and  enforceable  against 
them  by  all  the  powers  vested  in  a  court  of  equity,  yet  they  were  at 
liberty  at  any  time,  under  new  circumstances  making  it  inequitable 
for  it  to  be  longer  continued,  to  apply  to  the  court  for  a  review  of  the 
case  and  a  dissolution  of  the  injunction.  In  respect  to  such  a  state 
of  facts,  an  injunction  can  never  be  said  to  be  final,  in  the  sense  that 
it  is  absolute  for  all  time.  Even  without  any  new  legislation  affecting 
the  rights  of  the  parties,  with  an  increase  of  their  own  business  and 
a  general  increase  of  manufacturing  and  other  business  in  the  vicinity, 
and  of  a  general  and  pervading  change  in  the  character  of  the  neigh- 
borhood, it  might  be  very  unreasonable  to  continue  an  injunction 
which  it  was  in  the  first  instance  entirely  reasonably  and  proper  to 
grant.  The  ears  of  the  court  could  not  under  such  new  circumstances 
be  absolutely  shut  to  an  application  for  its  modification,  without  any 
new  statute  declaring  the  policy  of  the  Commonwealth  in  respect  to 
any  branch  of  business  or  employment.  But  a  declaration  by  the 
Legislature  that,  in  its  judgment,  it  is  reasonable  and  necessary  for 
certain  branches  of  business  to  be  carried  on  in  particular  ways,  not- 
withstanding the  incidental  disturbance  and  annoyance  to  citizens, 
is  certainly  a  change  of  circumstances  which  is  entitled  to  the  highest 
consideration  of  the  court ;  and  in  the  present  case  we  cannot  doubt 
that  it  is  sufficient  to  entitle  the  plaintiffs  to  relief  from  the  operation 
of  the  injunction.     . 

Demurrer  overruled. 


ELLIS  V.  KANSAS  CITY,  ETC.,  U.  U.  CO. 

(Supreme  Court  of  Missouri,  1876,  63  Mo.  131.) 

Norton,  J.     This  was  an  action  brought  by  plaintiff  in  the  special 
law  and  equity  court  of  Jackson  county,  to  recover  damages   for  a 


270  EEPAEATioasr  and  prevention  of  torts.       (Part  1 

nuisance.-  It  is  alleged  in  the  petition  that  the  plaintiff  and  her  hus- 
band and  their  children  were  living  in  a  certain  house  in  Platte  county 
of  which  her  husband  had  the  possession,  situated  about  forty  yards 
from  the  railroad  track  of  defendant;  that  during  their  occupancy 
of  said  house  the  defendant,  by  their  locomotive,  ran  against  and 
killed  a  horse,  directly  opposite  the  house  occupied  by  plain*:iff,  and 
permitted  the  same  to  remain  on  the  side  of  their  railroad  track  for 
about  two  weeks,  during  which  time,  by  the  decomposition  of  the 
carcass,  the  surrounding  atmosphere  became  so  noxious  and  offensive  as 
to  render  the  house  occupied  by  the  plaintiff  unwholesome,  and  caused 
her  to  become  seriously  sick.  The  answer  denies  all  the  material  al- 
legations of  the  petition.     .     .     . 

The  defendant,  in  permitting  the  horse  killed  by  its  locomotive 
to  remain  on- the  side  of  the  track,  so  near  the  house  occupied  by  plain- 
tiff and  her  husband  as  to  render  its  occupancy  unwholesome,  was 
guilty  of  a  private  nuisance,  for  which  it  rendered  itself  liable  to  an 
action  by  the  person  in  possession  of  the  house.  The  right  of  action 
in  this  case  was  in  the  husband  of  plaintiff,  he  being  the  occupier  and 
in  the  rightful  possession  of  the  house  with  his  family  by  contract 
with  the  owner  of  the  property.  Had  the  husband  brought  this  suit 
it  could  have  been  maintained,  and  on  the  trial  he  would  have  been 
permitted  not  only  to  show  the  sickness  of  himself,  but  also  the 
sickness  of  his  wife,  his  family,  and  the  different  members  thereof, 
as  a  measure  for  the  recovery  of  damages.  (Story  v.  Hammond,  4 
Ohio,  Z7(i\  Kearney  v.  Farrell,  28  Conn.  317.)     .     .     . 

We  have  not  been  able  to  find  any  authority  which  would  authorize 
us  to  declare  that  each  member  of  the  family  of  the  occupant  of  a 
house  affected  by  a  private  nuisance  could  maintain  an  action  therefor, 
which  would  follow  if  the  views  contended  for  by  plaintiff  are  cor- 
rect. In  an  action  to  recover  damages  for  a  nuisance  of  the  character 
complained  of,  the  plaintiff  must  prove  possession  of  the  house,  the 
injurious  act  complained  of,  and  the  damages  resulting  therefrom. 
(2  Greenl.  Ev.  §  470.)       .     .     . 


Ch.    3)  PRIVATE     NUISANCE.  271 

KUZNIAK  V.  KOZMINSKI. 
(Supreme  Court  of  Michigan,  1895,  107  Mich.  444,  65  N.  W.  275). 

Long.  J.  The  parties  to  this  cause  own  adjoining  lots  in  the  city 
of  Grand  Rapids.  Defendants'  lot  is  on  the  southeasterly  corner  of 
Eleventh  and  Muskegon  streets,  and  upon  which  is  a  large  tene- 
ment house  facing  both  streets.  The  complainant  owns  the  lot  im- 
mediately south  and  adjoining  the  defendants',  and  upon  which  he 
has  a  dwelling  house  facing  Muskegon  street,  and  also  a  tenement 
house  about  60  feet  back  from  Muskegon  street,  and  within  22  inches 
of  the  north  line,  being  the  line  of  defendant's  lot.  At  the  time  this 
tenement  house  was  erected,  defendants  had  upon  their  lot  what  was 
called  a  "chicken  shed ;"  and,  after  complainant's  tenement  house  was 
erected,  defendants  moved  this  chicken  shed  upon  a  part  of  their  lot 
directly  opposite  complainant's  tenement  house,  and  within  24  inches 
of  the  lot  line,  and  converted  it  into  a  coal  and  wood  house  for  the 
use  of  their  tenants,  who  occupied  the  dwelling  on  said  lot.  This  bill 
was  filed  by  complainant  for  the  purpose  of  having  this  coal  and 
wood  house  of  defendants  declared  a  nuisance,  and  to  compel  them 
to  remove  the  same.  The  claim  made  by  the  bill  is  that  the  defendants 
removed  the  building  to  that  place  through  spite  and  from  a  malicious 
motive,  and  not  because  it  was  needed  for  any  useful  purpose.  De- 
fendants answered  the  bill,  denying  that  they  were  actuated  by  malice 
in  putting  the  building  there,  and  averred  that  it  was  so  placed  for 
the  use  of  their  tenants  for  wood  and  coal.  The  testimony  was  taken 
in  open  court,  and  the  court  found  that  the  building  was  a  nuisance, 
and  a  decree  was  entered  directing  the  defendants  to  remove  the 
building  within  60  days  from  the  date  of  the  decree,  and  that,  in 
default  of  such  removal,  the  sheriff  of  the  county  remove  the  same, 
at  the  cost  and  expense  of  defendants.  The  complainant  was  awarded 
the  costs  of  the  suit.    Defendants  appeal. 

It  was  held  in  Flaherty  v.  Moran,  81  Mich.  52,  that  a  fence  erected 
maliciously,  and  with  no  other  purpose  than  to  shut  out  the  light  and 
air  from  a  neighbor's  window,  was  a  nuisance,  and  the  decree  of  the 
court  below  ordering  its  removal  was  affirmed ;  but  that  decision  was 
placed  on  the  ground  that  the  fence  served  no  useful  purpose,  and 
was  erected  solely  from  a  malicious  motive.     In  the  present  case  the 


272  REPARATION    AND    PREVENTION   OF   TORTS.  (Part    1 

building  erected  by  the  defendants  was  for  a  useful  purpose;  and, 
while  there  may  have  been  some  malice  displayed  in  putting  it  so 
near  complainant's  house  as  to  shut  ofif  some  of  the  light,  that  would 
not  be  a  sufficient  reason  upon  which  to  found  a  right  in  complainant 
to  have  the  building  removed.  Defendants  had  a  right  to  erect  a 
building  upon  their  own  premises,  and  the  decisions  have  been  quite 
uniform  to  the  effect  that  the  motives  of  a  party  in  doing  a  legal  act 
cannot  form  the  basis  upon  which  to  found  a  remedy.  In  Allen  v. 
Kinyon,  41  Mich.  282,  it  was  held  that  the  motive  is  of  no  consequence 
when  the  party  does  not  violate  the  rights  of  another.  In  Hawkins  v. 
Sanders,  45  Mich.  491,  it  was  held  that  there  was  no  right  of  pros- 
pect which  would  prevent  the  erection  of  an  awning  on  a  neighboring 
lot.  The  case  does  not  fall  within  the  rule  of  Flaherty  v.  Moran, 
supra,  and  the  court  below  was  in  error  in  directing  the  removal  of  the 
building.  That  decree  must  be  reversed,  and  a  decree  entered  here 
dismissing  complainant's  bill,  with  costs  of  both  courts  to  the  de- 
fendants. 

The  other  Justices  concurred. 


WARREN  V.  PARKHURST. 

(New  York  Court  of  Appeals,  1906,  186  N.  Y.  45,  78  N.  E.  579.) 

Bartle;tt,  J.  This  action  is  brought  against  forty  defendants  in 
the  city  of  Gloversville.     .     .     . 

The  plaintiff,  for  the  last  ten  years,  has  owned,  and  now  owns,  a 
lot  of  land  and  dwelling  house  on  this  canal,  occupied  for  residential 
purposes  and  the  maintenance  of  a  meat  market.  The  defendants 
for  the  last  six  years  have  discharged,  and  do  now  discharge,  each 
from  his  own  place  of  business  into  Cayadutta  creek,  large  quantities 
of  filthy  matter  and  tannery  and  factory  refuse  and  harmful  and 
polluting  substances,  solid  and  liquid,  thereby  polluting  the  waters  and 
bed  and  banks  of  the  creek,  rendering  them  offensive  to  the  senses 
and  occasioning  deposit  in  the  canal  and  upon  the  lands  of  the  plain- 
tiff thereon,  rendering  them  less  useful  for  domestic  purposes.  By 
reason  of  this  pollution  of  the  canal  disagreeable  and  noxious  odors 
have  arisen,  continually  pervading  the  plaintiff's  dwelling  house  and 


OTQ 


Ch.    3)  PRIVATE     NUISANCE.  -to 

meat  market,  destroying  the  comfort  of  the  plaintiff  and  his  tenants 
in  the  use  of  his  property  and  diminishing  the  vahie  thereof  and  ren- 
dering the  premises  unhealthful.  Each  defendant  maintains  per- 
manent drains  and  shiices  for  carrying  such  refuse  and  poUuting  and 
harmful  substances  into  Cayadutta  creek  and  intends  to  continue  such 
discharge  thereof  and  to  increase  the  same  unless  restrained  from  so 
doing.  "The  damages  suffered  by  the  plaintiff  from  the  pollution  of 
the  stream  by  any  one  defendant,  if  there  were  not  other  sources  of 
pollution,  would  be  nominal ;  but  from  the  concurring  and  continuous 
trespass  of  all  the  defendants,  the  injury  which  the  plaintiff'  and  his 
lands  sustain  is  great  and  if  the  said  nuisance  is  continued  will  be 
irreparable  and  the  said  lands  and  tenements  will  be  rendered  wholly 
worthless  for  domestic  or  for  other  purposes."     .     .     . 

The  principles  of  equity  jurisprudence  applicable  to  the  deter- 
mination of  this  appeal  have  never  been  more  clearly  stated  by 
any  tribunal  in  the  United  States  or  more  thoroughly  or  ably  dis- 
cussed than  in  the  opinion  of  the  Supreme  Judicial  Court  of  Maine 
in  the  case  of  Lockwood  Co.  v.  Lawrence  {77  Me.  297).  The  nuisance 
which  was  the  subject  of  complaint  in  that  case  arose  out  of  the 
deposit  in  a  river  of  the  waste  from  sawmills  by  several  owners 
and  proprietors  of  such  sawmills  actitig  independently  of  one  another. 
The  refuse  material  and  debris  arising  from  the  operation  of  their 
separate  sawmills  was  carried  down  the  river  and  commingled  into 
one  indistinguishable  mass  before  it  reached  the  premises  of  the  com- 
plainant, where  it  was  deposited  in  such  quantities  as  to  constitute  a 
nuisance.  Objection  vvas  made  to  the  joinder  of  the  several  defend- 
ants in  one  bill  on  the  ground  that  the  cause  of  action  was  distinct  and 
several  as  against  each  of  them,  it  being  expressly  alleged  in  the  bill 
that  each  was  independently  working  his  own  saw  mill  without  any 
conspiracy  or  preconcert  of  understanding  or  action  with  the  others. 
This  objection  was  held  to  be  untenable,  inasmuch  as  there  was  co- 
operation in  fact  in  the  production  of  the  nuisance.  "The  acts  of  the 
respondents,"  said  Foster,  J,  "may  be  independent  and  several,  but 
the  result  of  these  several  acts  combine  to  produce  whatever  damage 
or  injury  these  complainants  suffer,  and  in  equity  constitutes  but  one 
cause  of  action." 

Another  leading  case  in  which  the  same  rule  was  applied  is  Draper 
V.   Brown    (115  Wis.   361),   which   was  a   suit   in   equity   against   a 
1  Eq.— 18. 


274  REPAEATTON    AND    PEEVENTION    OF    TORTS.  (Part    1 

number  of  defendants  to  restrain  the  commission  of  acts  resulting 
in  a  nuisance  and  consequent  injury  of  the  property  of  the  plaintiff. 
The  gravamen  of  the  action  was  the  unlawful  lowering  of  the  waters 
of  a  lake  below  their  accustomed  level,  the  plaintiff  alleging  that  some 
of  the  defendants  who  owned  a  mill  dam  at  the  outlet  of  the  lake  drew 
an  excessive  quantity  of  water  therefrom;  that  other  defendants  with- 
held the  natural  flow  of  a  river  running  into  the  lake,  and  that  still 
another  obstructed  the  flow  of  the  river,  thereby  diminishing  the 
quantity  of  the  water  which  reached  the  lake.  It  was  contended  that 
two  or  more  causes  of  action  were  improperly  united  in  the  com- 
plaint, but  the  court  held  that  the  complaint  stated  but  one  cause  of 
action  in  which  all  the  defendants  were  interested  inasmuch  as  though 
all  the  defendants  acted  independently  and  without  concert  their  acts 

united  and  concurred  in  producing  the  injurious  result.  The  fact  that 
the  parties  were  acting  without  concert  was  declared  to  be  no  defense 

to  an  equitable  action  for  injunctive  relief  if  their  acts  contributed 
in  some  appreciable  degree  to  produce  the  conditions  sought  to  be 
repressed.     .     .     . 

In  the  decisions  of  the  English  courts  we  also  find  precedents  for  the 
maintenance  of  such  a  suit  in  equity  as  that  before  us.  In  Thorpe 
V.  Brumfitt  (L.  R.  (8  Ch.  App.)  650)  Thorpe,  the  lessee  of  an  inn, 
brought  an  action  against  Morrell,  Brumfitt  and  other  tenants  of 
Morrell  for  an  injunction  to  restrain  the  defendants  from  blocking 
up  or  obstructing  a  right  of  way  leading  to  the  inn.  The  obstruction 
complained  of  was  caused  by  allowing  carts  and  wagons  to  remain 
stationary  in  the  passage  in  course  of  loading  and  unloading  so  as 
to  obstruct  access  to  the  yard  of  the  inn.  The  master  of  the  rolls 
made  a  decree  declaring  that  the  plaintiffs  and  the  defendants  had  an 
equal  and  reciprocal  right  to  the  use  of  the  roadway,  but  that  none 
of  the  persons  interested  were  entitled  to  place  or  to  leave  any  sta- 
tionary obstruction  in  such  roadway  except  at  such  times  as  the  use 
thereof  was  not  required  for  any  of  the  other  persons  interested 
therein,  and  he  granted  an  injunction  in  accordance  with  this  declara- 
tion. The  decree  and  injunction  were  affirmed  in  the  Court  of  Ap- 
peal and  Lord  Justice  James  in  his  opinion  sustained  the  proposition 
that  the  acts  of  several  persons  may  constitute  a  nuisance  which  the 
court  will  restrain  when  the  damage  occasioned  by  the  acts  of  any 
one  if  taken  alone  would  be  inappreciable.  He  said:  "Then  it  was 
said  that  the  plaintiff  alleges  an  obstruction  caused  by  several  persons 


Cll.    3)  PRIVATE     NUISANCE.  275 

acting  independently  of  each  other,  and  does  not  show  what  share 
each  had  in  causing  it.  It  is  probahly  impossible  for  a  person  ni 
the  plaintiff's  position  to  shew  this.  Nor  do  I  think  it  necessary  that 
he  should  shew  it.  The  amount  of  obstruction  caused  by  any  one 
of  them  might  not,  if  it  stood  alone,  be  sufficient  to  give  any  ground  of 
complaint,  though  the  amount  caused  by  them  all  may  be  a  serious 
injury.  Suppose  one  person  leaves  a  wheelbarrow  standing  on  a  way ; 
that  may  cause  a  serious  inconvenience  which  a  person  entitled  to  the 
use  of  the  way  has  a  right  to  prevent,  and  it  is  no  defense  to  any  one 
person  among  the  hundred  to  say  that  what  he  does  causes  of  itself 
no  damage  to  the  complainant."  .  ,  . 
Judgment  affirmed. 


SOLTAU  V.  DE  HELD. 

(In  Chancery,  1851,  2  Sim.    (N.  S.)    133.) 

Previously  to  1817,  a  mansion-house  in  Park  Road,  Clapham,  was 
divided  into  two  messuages,  but  without  there  being  any  party-wall 
between  them;  and,  on  the  25th  of  March  1817,  the  plaintiff  took  a 
lease  of  one  of  the  messuages  for  sixty-nine  years:  and,  with  the 
exception  of  two  intervals,  he  had  ever  since  resided  in  it  with  his 
family.  The  other  messuage  was  occupied  as  a  private  residence  up 
to  July,  1848,  when  it  was  purchased  by  a  religious  order  of  Roman 
Catholics,  called  "The  Redemptorist  Fathers ;"  and  they  converted  the 
ground  floor  into  a  chapel,  and  appointed  the  defendant,  who  was  a 
priest  of  the  Roman  Catholic  church,  to  officiate  in  it.  In  August, 
1848,  the  defendant  caused  a  wooden  frame  to  be  erected  on  the  roof 
of  the  last-mentioned  messuage,  and  a  bell  to  be  hung  in  it,  which 
was  rung,  by  his  direction,  five  times  on  Monday,  Tuesday,  Wednes- 
day, Thursday  and  Friday;  six  times  on  Saturday,  and  oftener  on 
Sunday  in  every  week:  the  ringing  ordinarily  commenced  at  five  in 
the  morning,  and  continued  for  ten  minutes,  to  the  great  discomfort 
and  annoyance  of  the  plaintiff  and  his  family.     .     .     . 

In  May,  1851,  a  Roman  Catholic  church  with  a  steeple,  was  erected 
on  the  ground  adjoining  the  chapel,  and  was  opened  on  the  14th  of 
that  month,  and,  on  that  occasion,  six  bells,  which  had  been  placed 
in  the  belfry  of  the  steeple,  were  rung  nearly  the  whole  day.     .     .     . 


276  REPAEATION    AND    PEEVENTION    OF    TORTS.  (Part    1 

The  chapel  bell  and  church  bells  were,  subsequently  to  20th  of 
May,  rung  daily,  upon  an  average,  as  great  a  number  of  times  as  they 
had  been  rung  upon  the  several  occasions  before  mentioned,  down 
to  the  time  when  the  plaintiff  obtained  a  verdict  in  the  action  after 
mentioned. 

The  bill  was  filed  on  the  20th  of  November,  1851,  and,  after  stating 
as  above,  it  alleged  that,  when  a  peal  of  the  church  bells  was  rung, 
the  noise  was  so  great  that  it  was  impossible  for  the  plaintiff,  or 
the  members  of  his  family,  to  read,  write  or  converse  in  his  house: 
that  the  ringing  of  the  chapel  bell  and  church  bells  was  an  intolerable 
nuisance  to  the  plaintiff,  and  if  the  said  bell  or  bells  was  or  were 
permitted  to  be  rung  in  the  manner  in  which  the  same  were  so  rung 
as  aforesaid,  it  would  be  impossible  for  the  plaintiff  to  reside  any 
longer  in  his  house :  that  in  consequence  of  the  before-mentioned 
grievance,  the  plaintiff  applied  to  the  defendant  to  desist  from  ring- 
ing the  said  bells  or  any  of  them,  so  as  to  occasion  any  annoyance 
to  the  plaintiff;  and  the  defendant,  having  refused  to  comply  with" 
that  application,  the  plaintiff,  in  June,  1851,  commenced  an  action 
against  the  defendant  to  recover  damages  for  the  nuisance  com- 
mitted to  him,  by  means  or  in  consequence  of  the  before-mentioned 
ringing  of  the  said  bell  or  bells:  that  the  action  was  tried  on  the  13th 
of  August,  1851,  when  a  verdict  was  found  for  the  plaintiff,  with 
forty  shillings  damages  and  costs :  that,  on  the  10th  of  November, 
1851,  judgment  in  the  action  was  signed,  and  it  remained  unreversed. 

The  bill  further  alleged,  that  some  time  after  the  commencement 
of  the  said  action,  the  chapel  bell  was  removed  from  the  roof  to  one 
of  the  sides  of  the  chapel,  and  after  the  13th  of  August,  neither 
that  bell  nor  the  church  bells  were  rung  until  Sunday  the  9th  of 
November,  1851.     .     .     . 

The  bill  prayed  that  the  defendant  and  all  persons  acting  under 
his  directions,  or  by  his  authority,  might  be  restrained  from  tolling 
or  ringing  the  chapel  bell  and  the  church  bells,  or  any  of  such  bells, 
and  from  permitting  the  said  bell  and  bells,  or  any  of  them,  to  be 
tolled  or  rung:  or  that  the  defendant  and  such  persons  as  aforesaid, 
might  in  like  manner,  be  restrained  from  tolling  or  ringing  the  said 
bell  or  bells,  permitting  the  same  or  any  of  them  to  be  tolled  or  rung, 
so  as  to  cause  or  occasion  any  nuisance  or  annoyance  to  the  plaintiff 
or  any  of  the  members  of  his  family  residing  at  his  residence  in  Park 
Road,  Clapham.     ... 


Oh.    3)  PEIVATE     NUISAJSTCE.  277 

The  Vicd-Chancellor  :  .  .  .  The  next  ground  insisted  upon 
in  support  of  the  demurrer,  was  that  the  plaintiff  had  not  estabHshed 
his  right  at  law.  Xow,  it  is  true  that  equity  will  only  interfere  in 
case  of  nuisance,  where  the  thing  complained  of  is  a  nuisance  at 
law:  there  is  no  such  thing  as  an  equitable  nuisance:  but  it  is  no 
ground  of  demurrer  that  the  matter  has  not  been  tried  at  law.  It 
very  often  is  a  ground  for  refusing  an  injunction:  but  it  is  not 
ground  of  demurrer,  as  appears  from  Berkley  v.  Ryder,  2  \^esey,  sen. 
P.  533,  and  from  Lord  Cottenham's  Judgment  in  Elmshirst  v.  Spencer, 
where  his  Lordship  expresses  himself  thus:  "The  plaintiff,  before 
he  can  ask  for  the  injunction,  must  prove  that  he  has  sustained  such 
a  substantial  injury,  by  the  acts  of  the  defendant  as  would  have  en- 
titled him  to  a  verdict  at  law,  in  an  action  for  damages."  And  then, 
in  another  part  of  the  same  judgment,  he  says:  "This  court  will  not 
take  upon  itself  to  adjudicate  upon  the  question  whether  this  is  a 
nuisance  or  not :  that  must  be  ascertained  in  a  court  of  law,  as  laid 
down  by  Lord  Eldon  in  The  Attorney-General  v.  Cleaver."  Now, 
in  The  Attorney-General  v.  Cleaver,  which  was  a  case  of  public 
nuisance,  Lord  Eldon  directed  the  indictment,  which  had  been  already 
brought  and  was  pending,  to  be  prosecuted,  and  ordered  the  motion 
to  stand  over  until  the  hearing  of  it.  Therefore  Lord  Cottenham,  in 
that  case,  is  referring  to  this ;  that  you  cannot  ask  for  the  injunction 
if  there  be  a  question  about  its  being  a  nuisance  at  law.  But  I  do 
not  know  where  it  is  laid  down  that  a  bill  will  not  lie,  that  is,  that 
it  is  a  ground  of  demurrer  because  the  action  has  not  yet  been  brought. 
However,  whether  that  be  so  or  not,  the  plaintiff  in  this  case  has 
brought  his  action  at  law,  and  obtained  a  verdict. 

Then  this  ingenious  argument  was  adduced.  It  was  said:  "There 
has  been  an  action  at  law ;  but  what  is  now  being  done,  and  which 
you  call  a  nuisance,  has  never  been  tried  at  law.  WHien  the  trial 
took  place  we  were  ringing  every  day  in  the  week :  we  were  be- 
ginning at  five  o'clock  in  the  morning,  and  we  were  ringing  a  consider- 
able period  of  time  on  each  occasion :  l)ut  now  we  ring  only  on  Sun- 
days. We  ring  a  fewer  number  of  times,  and  do  not  ring  so  long 
at  a  time.  Therefore,  you  must  bring  your  action  for  this,  and  try 
whether  this  is  a  nuisance."  If  that  argument  were  to  prevail,  see 
what  it  would  come  to.  Supposing  that,  after  the  trial  of  the  action, 
the  defendant,  instead  of  ringing  seven  days  in  the  week,  had  rung 
six;  or,  instead  of  beginning  at  five  o'clock  in  the  morning,  had  begun 


278'  BEPAEATTOlSr    AND    PEEVENTION   OF   TOETS.  (Part    1 

at  six ;  or,  instead  of  ringing  for  a  quarter  of  an  hour,  had  rung  ten 
minutes  each  time ;  and  when  the  plaintiff  came  into  equity  to  re- 
strain him,  he  had  said :  "You  have  not  tried  this.  When  you  brought 
your  action,  I  rang  seven  days  in  the  week ;  I  ring  only  six  now.  I 
began  at  five  o'clock;  I  now  begin  at  six  in  the  morning."  If  that 
were  yielded  to,  and  another  action  brought  and  damages  recovered, 
the  defendant  would  reduce  the  number  of  days'  ringing  from  six 
to  five,  and  say  you  have  not  tried  this ;  and  so  on  toties  quoties. 
It  is  clear  the  argument,  if  pushed  to  its  full  extent,  must  result  in 
that  which  is  contrary  to  all  reason  and  to  all  justice.  The  questions 
to  be  tried  were,  whether  the  plaintiff's  right  in  his  house  was  such 
as  to  entitle  him  to  come  for  relief  at  all,  and  whether  the  ringing 
of  the  bells  was  in  its  nature,  a  nuisance  at  law.  Both  these  questions 
have  been  tried;  but  the  exact  extent  or  quantum  of  injury  or  nuisance 
inflicted,  need  not  be  ascertained.  Besides,  the  whole  argument  upon 
this  ground  is  put  an  end  to  by  an  allegation  in  the  bill,  which  the 
demurrer  of  course,  admits  to  be  true;  "that  the  defendant  threatens 
and  intends,  not  only  to  continue  tolling  or  ringing  the  last-men- 
tioned bells  every  Sunday  in  the  manner  last  aforesaid,  but  he  also 
threatens  and  intends  to  ring  peals  of  the  said  six  bells,  and  also  to 
toll  and  ring,  on  week  days ;  and  he  also  threatens  and  intends  to 
toll  and  ring  the  bell  of  the  before-mentioned  chapel  or  religious 
house."  Therefore,  upon  this  demurrer,  it  is  quite  clear  that  the 
argument  that  the  plaintiff  has  not  established  his  right,  at  law,  can- 
not be  maintained. 


NELSON  V.  MILLIGAN. 

(Supreme  Court  of  Illinois,   1894,   151   111.  462,  38   N.   E.   239.) 

Wilkin,  C.  J.  This  was  a  bill,  by  appellant  against  appellees  in 
the  Superior  Court  of  Cook  county,  filed  on  the  31st  of  December, 
1892,  for  injunction.     ... 

The  injury  complained  of  by  the  bill,  sought  to  be  enjoined,  is 
permitting  dense  smoke,  dust  and  soot  to  be  emitted  from  the  chimneys 
of  defendants'  hotel,  which  is  cast  upon  and  into  the  doors  and  win- 
dows of  complainant's  dwelling  house,  to  the  injury  of  his  carpets, 


Ch.    3)  PRIVATE     NUISANCE.  279 

curtains,   draperies,   etc.,   and   to  the   annoyance   and   discomfort   of 
himself  and  family  residing  therein.     .     .     . 

While  the  decree  finds  that  complainant  was  injured  by  smoke 
from  the  chimneys  of  the  defendants,  as  alleged  in  the  bill,  it  also 
finds  that  the  hotel  building  can  be  operated  without  causing  any 
dense  smoke,  by  the  use  of  proper  fuel;  that  on  certain  occasions 
the  manager  caused  certain  kinds  of  fuel  to  be  used,  which  produced 
no  dense  smoke  or  soot  in  appreciable  quantities,  but  that,  during 
the  months  of  November  and  December,  1892,  dense  smoke  frequently 
issued  from  the  chimneys  of  said  hotel  building. 

All,  then,  that  can  be  said  from  the  bill,  answer,  and  findings  of 
the  decree,  is  that,  from  time  to  time,  prior  to  the  filing  of  the  bill, 
through  the  negligence  or  wrongful  act  of  the  defendants,  com- 
plainant was  injured  in  the  manner  stated  in  his  bill.  The  decree  in 
effect  finds  that,  while  using  "West  Virginia  coal,"  no  appreciable  dense 
smoke  was  emitted,  and  there  is  no  conflict  in  the  evidence  as  to  the 
fact  that  defendants  proposed  using  that  quality  of  fuel,  and  had 
done  so  when  it  could  be  obtained. 

While  it  is  true  that  the  consequences  of  their  not  being  able 
to  get,  or  unwillingness  to  use,  the  better  and  higher  priced  quality 
of  coal,  can  not  be  visited  upon  complainant  without  compensation 
in  damages,  it  by  no  means  follows  that  a  court  of  equity  will  make 
them  liable  to  its  penalties  for  contempt,  if  they  should  be  compelled 
to  use  the  inferior  fuel  temporarily  to  avoid  abandoning  their  busi- 
ness. The  remedy  for  such  an  injury  is  complete  and  adequate  at 
law.  There  is  no  theory  of  this  case,  conceding  all  that  is  found 
in  the  decree,  upon  which  it  can  be  said  an  injury  is  shown  which 
can  not  be  fully  ascertained  and  adequately  compensated  by  damages 
in  an  action  at  law,  or  which,  from  its  continuance  or  permanent  mis- 
chief, will  necessarily  occasion  constantly  recurring  grievances,  which 
can  not  be  otherwise  prevented  than  by  injunction,  and  therefore, 
upon  the  authorities  cited  above,  no  ground  is  shown  for  the  exercise 
of  equity  jurisdiction.     .     .    •. 

The  evidence,  then,  in  this  record,  favorably  construed  for  the 
complainant,  shows  no  more  than  that  the  defendants,  in  carrying 
on  their  lawful  business,  have  temporarily  been  compelled  to  use, 
or  have  at  most  negligently  used,  a  ([uality  of  fuel  which  i)roduced 
dense  smoke,  to  the  injury  of  complainant.     As  before  said,  for  such 


280  EEPAEATION    AND    PREVENTION    OF    TORTS.  (Part    1 

an  injury  the  remedy  at  law  is  complete  and  adequate.  There  is 
nothing  in  this  record  to  justify  the  conclusion  that  there  will  be  oc- 
casion to  resort  to  such  an  action  repeatedly.  There  is,  therefore,  no 
occasion  for  invoking  the  jurisdiction  of  a  court  of  equity.  This 
conclusion  in  no  way  conflicts  with  the  view,  that  emitting  dense 
smoke  from  chimneys  may  become  both  a  public  and  private  nuisance, 
nor  that  cases  may  not  arise  where  such  nuisances  will  be  enjoined. 
No  such  case  is  presented  by  this  record. 

The  judgment  of  the  Appellate  Court  will  be  affirmed. 

Judgment  affirmed. 


WHALEN  V.  UNION  BAG  &  PAPER  CO. 

(New  York  Court  of  Appeals,  1913,  208  N.  Y.  1,  101  N.  E.  805.) 

WernKR,  J.  The  plaintiff  is  a  lower  riparian  owner  upon  Kayade- 
rosseras  creek  in  Saratoga  county,  and  the  defendant  owns  and  op- 
erates on  this  stream  a  pulp  mill  a  few  miles  above  plaintiff's  land. 
This  mill  represents  an  investment  of  more  than  a  milhon  dollars  and 
gives  employment  to  400  or  500  operatives.  It  discharges  into  the 
waters  of  the  creek  large  quantities  of  a  liquid  effluent  containing 
sulphurous  acid,  lime  sulphur,  and  waste  material  consisting  of  pulp 
wood,  sawdust,  slivers,  knots,  gums,  resins  and  fibre.  The  pollution 
thus  created,  together  with  the  discharge  from  other  industries  lo- 
cated along  the  stream  and  its  principal  tributary,  has  greatly  di- 
minished the  purity  of  the  water. 

The  plaintiff  brought  this  action  to  restrain  the  defendant  from 
continuing  to  pollute  the  stream.  The  trial  court  granted  an  in- 
junction to  take  effect  one  year  after  the  final  affirmance  of  its  de- 
cision upon  appeal,  and  awarded  damages  at  the  rate  of  $312  a  year. 
The  Appellate  Division  reversed  the  judgment  of  the  Special  Term 
upon  the  law  and  facts,  unless  the  plaintiff  should  consent  to  a  re- 
duction of  damages  to  the  sum  of  $100  a  year,  in  which  event  the 
judgment  as  modified  should  be  affirmed,  and  eliminated  that  part 
of  the  trial  court's  decree  granting  an  injunction.  The  plaintiff  there- 
upon stipulated  for  a  reduction  of  damages,  and  then  appealed  to  this 
court   from   the   modified   judgment.      The    facts    found   by   the  trial 


Oh.    3)  PEIVATE     NUISANCE.  281 

court — which  do  not  appear  to  have  been  disturbed  by  the  Appellate 
Division — establish  a  clear  case  of  wrongful  pollution  of  the  stream, 
and  need  not  be  set  forth  in  detail. 

The  plaintiff  is  the  owner  of  a  farm  of  two  hundred  and  fifty-five 
acres,  and  the  trial  court  has  found  that  its  use  and  value  have  been 
injuriously  affected  by  the  pollution  of  the  stream  caused  by  the  de- 
fendant. The  defendant  conducts  a  business  in  which  it  has  invested 
a  large  sum  of  money  and  employs  great  numbers  of  the  inhabitants 
of  the  locality.  We  have  recently  gone  over  the  law  applicable  to 
cases  of  this  character  (Strobel  v.  Kerr  Salt  Co.,  164  N.  Y.  303; 
Sammons  v.  City  of  Gloversville,  175  id.  346,)  and  it  is  unnecessary 
now  to  restate  it.  The  majority  of  the  learned  court  below  reduced 
the  damages  suffered  by  the  plaintiff  to  $100  a  year,  and  reversed  that 
portion  of  the  decree  of  the  trial  court  wdiich  awarded  an  injunction. 
The  setting  aside  of  the  injunction  w^as  apparently  induced  by  a  con- 
sideration of  the  great  loss  likely  to  be  inflicted  on  the  defendant  by 
the  granting  of  the  injunction  as  compared  with  the  small  injury 
done  to  the  plaintift''s  land  by  that  portion  of  the  pollution  which  was 
regarded  as  attributable  to  the  defendant.  Such  a  balancing  of  in- 
juries cannot  be  justified  by  the  circumstances  of  this  case.  It  is 
not  safe  to  attempt  to  lay  down  any  hard  and  fast  rule  for  the  guid- 
ance of  courts  of  equity  in  determining  when  an  injunction  shall 
issue.  As  Judge  Story  said:  "It  is  impossible  to  foresee  all  the  ex- 
igencies of  society  which  may  require  their  aid  and  assistance  to 
protect  rights  or  redress  wrong."  (2  Story's  Eq.  Juris.  [10  ed.]  § 
959b). 

One  of  the  troublesome  phases  of  this  kind  of  litigation  is  the  dif- 
ficulty of  deciding  when  an  injunction  shall  issue  in  a  case  where  the 
evidence  clearly  establishes  an  unlawful  invasion  of  a  plaintiff's  rights, 
but  his  actual  injury  from  the  continuance  of  the  alleged  wrong  will 
be  small  as  compared  with  the  great  loss  which  will  be  caused  by  the 
issuance  of  the  injunction.  This  appeal  has  been  presented  as  though 
that  question  were  involved  in  the  case  at  bar,  but  we  take  a  different 
view.  Even  as  reduced  at  the  appellate  division,  the  damages  to 
the  plaintiff's  farm  amount  to  $100  a  year.  It  can  hardly  be  said  that 
this  injury  is  unsubstantial,  even  if  we  should  leave  out  of  considera- 
tion the  peculiarly  noxious  character  of  the  pollution  of  which  the 
plaintiff  complains.  The  waste  from  the  defendant's  mill  is  very  de- 
structive both  to  vegetable  and  animal  life  and  tends  to  deprive  the 


282  REPAEATION    AND    PEEVENTION    OF    TORTS.  (Part    1 

waters  with  which  it  is  mixed  of  their  purifying  quahties.     It  should 
be  borne  in  mind  also  that  there  is  no  claim  on  the  part  of  the  de- 
fendant that  the  nuisance  may  become  less  injurious  in  the  future. 
Although   the    damage   to   the   plaintiff   may   be    slight    as    compared 
with  the  defendant's  expense  of  abating  the  condition,  that  is  not  a 
good  reason   for   refusing  an   injunction.     Neither   courts   of   equity 
nor  law  can  be  guided  by  such  a  rule,  for  if  followed  to  its  logical 
conclusion  it  would  deprive  the  poor  litigant  of  his  little  property  by 
giving  it  to  those  already  rich.     It  is  always  to  be  remembered  in  such 
cases  that  "denying  the  injunction  puts  the  hardship  on  the  party  in 
whose  favor  the  legal  right  exists  instead  of  the  wrongdoer."   (Pom- 
eroy's  Eq.  Juris,  vol.  5,  §  530.)      In  speaking  of  the  injustice  which 
sometimes    results    from   the   balancing   of    injuries   between   parties, 
the  learned  author   from  whom  we  have  just  quoted,   sums  up  the 
discussion  by  saying:     "T^*^  weight  of  authority  is  against  allowing 
a  balancing  of  injury  as  a  means  of   determining  the   propriety  of 
issuing  an  injunction."    To  the  same  effect  is  the  decision  in  Weston 
Paper  Co.  v.  Pope  (155  Ind.  394.)     "The  fact  that  the  appellant  has 
expended  a  large  sum  of  money  in  the  construction  of  its  plant  and 
that  it  conducts  business  in  a  careful  manner  and  without  malice  can 
make  no  difference  in  its  rights  to  the  stream.     Before  locating  the 
plant  the  owners  were  bound  to  know  that  every  riparian  proprietor 
is  entitled  to  have  the  waters  of  the  stream  that  washes  his  lartd  come 
to  it  without  obstruction,  diversion  or  corruption,  subject  only  to  the 
reasonable  use  of  the  water,  by  those  similarly  entitled,  for  such  do- 
mestic purposes  as  are  inseparable  from  and  necessary  for  the  free 
use  of  their  land ;  and  they  were  bound  also  to  know  the  character  of 
their  proposed  business,  and  to  take  notice  of  the  size,  course,  and 
capacity  of  the  stream,  and  to  determine  for  themselves  at  their  own 
peril  whether  they  should  be  able  to  conduct  their  business  upon  a 
stream  of  the  size  and  character  of  Brandywine  creek  without  injury 
to  their  neighbors;  and  the  magnitude  of  their  investment  and  the 
freedom  from  malice  furnish  no  reason  why  they  should  escape  the 
consequences  of  their  own  folly."     .     .     . 


ril.    3)  PKIYATE     NUISANCE.  283 


BLISS  V.  ANACONDA  COPPER  MINING  CO. 

(United  States  Circuit  Court,   1909,   167   Fed.  342.) 

Hunt,  P.  J.  Fred  J-  Bliss,  a  resident  and  citizen  of  Idaho,  in- 
stituted this  suit  on  the  4th  day  of  May,  1905,  against  the  Anaconda 
Copper  Mining  Company  and  the  Washoe  Copper  Company,  Mon- 
tana corporations,  and  prayed  for  a  permanent  injunction  forever 
restraining  and  enjoining  defendants  from  operating  a  certain  smelt- 
ing plant  situated  near  the  city  of  Anaconda,  Mont.,  and  from  treat- 
ing ores  described  as  containing  poisonous  and  deleterious  substances, 
and  for  general  relief.     .     .     . 

Finally,  in  the  last  analysis,  when,  in  connection  with  the  attitude 
of  Mr.  Bliss,  direct  and  vicarious,  we  weigh  the  uncertainty  of  his 
proof  as  to  the  amount  of  past  damages  done  to  his  land,  or  of  future 
damages  to  be  done  to  his  pastures  by  the  acts  of  these  defendants, 
together  with  the  fact  that  he  has  not  resorted  to  a  court  of  law  to 
recover  any  damages  at  all,  and  balance  these  matters  against  the 
stern  fact  that,  if  defendants  are  enjoined  as  prayed  for,  they  must 
either  buy  the  lands  of  the  farmers  at  their  own  prices,  or  sacrifice 
their  property ;  that,  if  enjoined  as  prayed  for,  their  smeher  must  close ; 
that,  if  it  does  close,  their  business  and  great  property  will  be  practi- 
cally ruined;  that  a  major  part  of  the  sulphide  copper  ores  of  Butte 
cannot  be  treated  elsewhere  within  this  state;  that  thousands  of  de- 
fendants' employees  will  have  to  be  discharged;  that  the  cities  of 
Anaconda  and  Butte  will  be  injured  irreparably  by  the  general  eflfect 
upon  internal  commerce  and  business  of  all  kinds;  that  professional 
men,  banks,  business  men,  working  people,  hotels,  stores,  and  rail- 
roads will  be  so  vitally  affected  as  to  cause  unprecedented  depression 
in  the  most  populous  part  of  the  state;  that  the  county  government 
of  one  county  of  the  state  may  not  be  able  to  exist ;  that  the  farmers 
of  the  valleys  adjacent  to  Butte  and  Anaconda  will  not  have  nearly  as 
good  markets  as  they  have  enjoyed;  that  the  industry  of  smelting 
copper  sulphide  ores  will  be  driven  from  the  state;  and  that  values 
of  many  kinds  of  property  will  either  be  practically  destroyed  or 
seriously  affected — remembering,  always,  that  the  courts  of  law  are 
open  to  Mr.  Bliss,  I  hold  that  under  the  evidence,  as  he  has  submitted 


284  REPAEATION    AND    PREVENTION   OF   TORTS.  (Part    1 

his  case,  discretion,  wisely,  imperatively  guided  by  the  spirit  of  justice, 
does  not  demand  that  injunction,  as  prayed  for,  should  issue. 

It  does  not  necessarily  follow,  however,  that  his  bill  should  be  dis- 
missed. This  has  been  a  litigation  of  overmuch  expense.  Its  conse- 
quences are  of  interest  to  many  people,  and,  keeping  in  mind  the  es- 
sential fact  that  animal  health  is  being  affected,  if  there  can  be  any 
reasonable  preventive  remedy  applied  by  a  court  of  equity,  every 
larger  consideration  demands  that  it  should  be ;  that  is  to  say,  not- 
withstanding the  denial  of  the  writ,  as  prayed  for,  if  a  measure  of 
relief  less  than  that  which  complainant  has  proved  he  is  entitled  to 
can  be  awarded  to  him,  he  should  have  it  by 'some  form  of  judicial 
order.  Equity,  having  jurisdiction  of  the  parties  and  the  subject- 
matter,  will  therefore  retain  the  bill,  in  diligent  effort  to  afford  all 
the  relief  reasonably  possible  under  its  allegations.  Where  the  de- 
fendant has  a  clear  ultimate  right  to  do  the  act  sought  to  be  enjoined 
upon  certain  possible  conditions,  the  courts  will  endeavor  to  adjust 
their  orders  so  on  the  one  hand  as  to  give  to  the  complainant  the 
substantial  benefit  of  such  conditions,  while  not  restraining  the  de- 
fendant from  the  exercise  of  its  ultimate  rights.  McElroy  v.  Kan- 
sas City,  (C.  C.)  21  Fed.  257. 

I  am  always  deeply  sensible,  too,  how  especially  important  it  is, 
in  the  practical  preservation  of  the  equality  of  the  law,  that,  when  a 
man  of  limited  means  seeks  relief  against  a  corporation  or  indi- 
vidual of  very  great  wealth,  his  property  rights  must  be  protected 
with  scrupulous  care  against  threatened  or  continuing  unlawful  en- 
croachments, without  unnecessarily  forcing  him  into  litigation  so  ex- 
pensive or  protracted  that  it  may  mean  impoverishment  or  denial  of 
substantial  justice.  Let  it  not  be  understood  that,  in  saying  this,  I 
mean  to  imply  that  defendants  herein  have  assumed  any  unfair  at- 
titude toward  Mr.  Bliss  or  others  in  the  Deer  Lodge  valley.  On  the 
contrary,  as  the  case  is  submitted,  it  appears  that  they  were  ready  to 
treat  with  him  and  other  landowners,  and  were  willing  to  buy  his  land, 
and  consider  claims  of  injury ;  but  their  advances  were  checked  by 
Mr.  Bliss'  refusal  to  sell,  and  by  the  ultimatum  of  March  4,  1905, 
from  the  association.  Nevertheless,  the  court  will  not  peremptorily 
turn  the  complainant  away,  but  will  use  its  power,  already  invoked 
in  this  suit,  to  give  him  relief  as  may  be  reasonably  possible,  without 
destroying  defendants'  business;  but,  for  lack  of  information,  the 
court  can  now  make  no  such  specific  order  as  will  be  just  to  both 


Cll.    3)  DISTURBANCE   OF  PEIVATE  EASEMENTS.  285 

sides.  Accordingly,  after  a  study  of  the  evidence  of  Mr.  Mathewson, 
superintendent  of  the  Washoe  smelter,  I  take  it  upon  myself  as  a 
chancellor  to  say  that  I  am  not  satisfied  that  the  construction  of  ad- 
ditional arsenic  furnaces  will  not  help  the  situation,  or  that  there  may 
not  be  some  system  of  spraying  the  smoke  and  cooling  the  gases  which 
will  aid  in  settling  flue  dust,  or  that  a  greater  width  and  height  to 
the  chambers  may  not  be  effective  aids,  or  that  a  further  system  of 
filters  may  not  be  devised,  or  that  briquetting  flue  dust  may  not  be 
of  help,  or  that  an  arrangement  of  bags  may  not  be  made,  or  other 
means  applied,  perhaps  discovered  since  this  suit  was  instituted,  which 
will  materially  reduce  the  quantities  of  escaping  arsenic.  I  therefore 
think  the  more  equitable  course  to  pursue  is  to  call  for  further  evi- 
dence with  respect  to  the  subject  of  adopting  other  or  additional 
means  to  prevent  the  release  of  arsenic,  to  the  end  that  I  may  be 
more  fully  advised  in  the  premises  before  making  final  disposition  of 
the  case.     .     .     . 


SECTION  IV.  DISTURBANCE  OF  PRIVATE  EASEMENTS. 


PARKER  &  EDGARTON  v.  FOOTE. 

(Supreme  Court  of  New  York,  1838,  19  Weijcl.  309.) 

This  was  an  action  on  the  case  for  stopping  lights  in  a  dwelling-house, 
tried  at  the  Oneida  circuit  in  April,  1836,  before  the  Hon.  Hiram 
Denio,  then  one  of  the  circuit  judges.     .     .     . 

Most  of  the  cases  on  the  subject  we  have  been  considering,  relate 
to  ways,  commons,  markets,  water-courses,  and  the  like,  where  the 
user  or  enjoyment,  if  not  rightful,  has  been  an  immediate  and  con- 
tinuing injury  to  the  person  against  whom  the  presumption  is  made. 
His  property  has  either  been  invaded,  or  his  beneficial  interest  in  it 
has  been  rendered  less  valuable.  'I'hc  injury  has  been  of  such  a  char- 
acter that  he  might  have  immediate  redress  by  action.  lUit  ni  the 
case  of  windows  overlooking  the  land  of  another,  the  injury,  if 
any,  is  merely  ideal  or  imaginary.    The  light  and  air  whicli  they  admit 


286  REPAEATION    AND    PEEVENTION    OF    TORTS.  (Part    1 

are  not  the  subjects  of  property  beyond  the  moment  of  actual  oc- 
cupancy; and  for  overlooking  one's  privacy  no  action  can  be  main- 
tained. The  party  has  no  remedy  but  to  build  on  the  adjoining  land 
opposite  the  offensive  window.  (Chandler  v.  Thompson,  3  Campb.  80. 
Cross  V.  Lewis,  2  Barn.  &  Cress,  686,  per  Bayley,  J.)  Upon  what 
principle  the  courts  in  England  have  applied  the  same  rule  of  pre- 
sumption to  two  classes  of  cases  so  essentially  different  in  character, 
I  have  been  unable  to  discover.  If  one  commit  a  daily  trespass  on 
the  land  of  another  under  a  claim  of  right  to  pass  over,  or  to  feed 
his  cattle  upon  it ;  or  divert  the  water  from  his  mill,  or  throw  it  back 
upon  his  land  or  machinery;  in  these  and  the  like  cases,  long  con- 
tinued acquiescence  affords  strong  presumptive  evidence  of  right. 
But  in  the  case  of  lights,  there  is  no  adverse  user,  nor  indeed  any  use 
whatever  of  another's  property ;  and  no  foundation  is  laid  for  in- 
dulging any  presumption  against  the  rightful  owner.     .     .     . 

The  learned  judges  who  have  laid  down  this  doctrine  have  not  told 
us  upon  what  principle  or  analogy  in  the  law  it  can  be  maintained. 
They  tell  us  that  a  man  may  build  at  the  extremity  of  his  own  land, 
and  that  he  may  lawfully  have  windows  looking  out  upon  the  lands 
of  his  neighbor.  (2  Barn.  &  Cres.  686;  3  id.  332.)  The  reason  why 
he  may  lawfully  have  such  windows,  must  be,  because  he  does  his 
neighbor  no  wrong;  and  indeed,  so  it  is  adjudged,  as  we  have  already 
seen;  and  yet  somehow  or  other,  by  the  exercise  of  a  lawful  right  in 
his  own  land  for  20  years,  he  acquires  a  beneficial  interest  in  the  land 
of  his  neighbor.  The  original  proprietor  is  still  seized  of  the  fee, 
with  the  privilege. of  paying  taxes  and  assessments;  but  the  right  to 
build  on  the  land,  without  which  city  and  village  lots  are  of  little  or 
no  value,  has  been  destroyed  by  a  lawful  window.  How  much  land 
can  thus  be  rendered  useless  to  the  owner,  remains  yet  to  be  settled. 
(2  Barn.  &  Cres.  686.  2  Carr.  &  Payne,  465 ;  5  id.  438.)  Now  what  is 
the  acquiescence  which  concludes  the  owner?  No  one  has  trespassed 
upon  his  land,  or  done  him  a  legal  injury  of  any  kind.  He  has  sub- 
mitted to  nothing  but  the  exercise  of  a  lawful  right  on  the  part  of  his 
neighbor.  How  then  has  he  forfeited  the  beneficial  interest  in  his 
property?  He  has  neglected  to  incur  the  expense  of  building  a  wall 
20  or  50  feet  high,  as  the  case  may  be — not  for  his  own  benefit,  but  for 
the  sole  purpose  of  annoying  his  neighbor.  That  was  his  only  remedy. 
A  wanton  act  of  this  kind,  although  done  in  one's  own  land,  is  cal- 


CTh.    3)  DISTURBANCE    OF  PRIVATE  EASEMENTS.  287 

Ciliated  to  render  a  man  odious.  Indeed  an  attempt  has  been  made  to 
sustain  an  action  for  erecting  such  a  wall.  (Mahan  v.  Brown,  13  Wen- 
dell, 261). 

There  is,  I  think,  no  principle  upon  which  the  modern  English  doc- 
trine on  the  subject  of  lights  can  be  supported.  It  is  an  anomaly  in 
the  law.  It  may  do  well  enough  in  England ;  and  I  see  that  it  has 
recently  been  sanctioned  with  some  qualification  by  an  act  of  parlia- 
ment. (Stat.  2  &  3  Will.  4,  c.  71,  §  3.)  But  it  cannot  be  applied 
in  the  growing  cities  and  villages  of  this  country,  without  working  the 
most  mischievous  consequences.  It  has  never,  I  think,  been  deemed 
a  part  of  our  law.  (3  Kent's  Comm.  446,  note  [a].)  Nor  do  I  find 
that  it  has  been  adopted  in  any  of  the  states.  The  case  of  Story  v. 
Odin  (12  Mass.  R.  157),  proceeds  on  an  entirely  different  principle. 
It  cannot  be  necessary  to  cite  cases  to  prove  that  those  portions  of  the 
common  law  of  England  which  are  hostile  to  the  spirit  of  our  in- 
stitutions, or  which  are  not  adapted  to  the  existing  state  of  things  in 
this  country,  from  no  part  of  our  law.  And  besides,  it  would  be 
difficult  to  prove  that  the  rule  in  question  was  known  to  the  common 
law  previous  to  the  19th  of  April,  1775  (Const.  N.  Y.  art.  7,  §  13.) 
There  were  two  nisi  prius  decisions  at  an  earlier  day  (Lewis  v.  Price 
in  1761,  and  Dongal  v.  Wilson  in  1763),  but  the  doctrine  was  not 
sanctioned  in  Westminster  Hall  until  1786,  when  the  case  of  Darwin 
V.  Upton  was  decided  by  the  K.  B.  (2  Saund.  175,  note  [2j).  This 
was  clearly  a  departure  from  the  old  law.  (Bury  v.  Pope,  Cro.  Eliz. 
118). 


BRANDE  V.  GRACE. 

(Supreme  Court  of  Massachusetts,  1891,  154  Mass.  210,  31  N.  E.  G33.) 

Bill  in  equity,  filed  in  the  vSuperior  Court  on  August  30,  1890, 
against  James  J.  Grace  and  the  American  Protective  League,  to  pre- 
vent the  defendants  from  altering  a  ])uilding.  The  case  was  heard  by 
Mason,  J.,  and  reported  for  the  determination  of  this  court,  and 
was  as  follows. 

The  plaintiffs  composed  the  firm  of  Brande  and  Soule,  dentists; 
and  the  defendant  Grace  was  the  lessee  of  premises  nmnbered  181 
Tremont   Street,  in  Boston,  which  included  a  six-story   building  set 


288!  REPARATIOlSr    AND    PEEVENTIOlSr   OF   TORTS.  (Part    1 

back  from  twelve  to  fourteen  feet  from  the  sidewalk  of  that  street.  The 
unoccupied  land  between  the  building  and  the  street  was  included  in 
his  lease,  and  was  used  as  a  part  of  the  sidewalk,  but  had  never  been 
dedicated  to  the  public.  On  or  about  February  1,  1888,  Grace  executed 
a  sublease,  with  a  covenant  therein  for  quiet  enjoyment  of  a  portion 
of  the  building,  described  as  "the  rooms  numbered,  1,  2,  3,  and  4, 
located  on  the  second  floor  of  building  numbered  181,  and  located  on 
Tremont  Street  in  said  Boston,  with  all  the  rights  and  privileges 
thereto  belonging.  .  .  .  from  the  first  day  of  March,  A.  D.  1888, 
during  the  following  term  of  four  years  thence  next  ensuing,  expiring 
February  29,  A.  D.  1892."  These  rooms  included  the  front  rooms 
on  that  story,  and  from  them  an  uninterrupted  outlook  was  to  be 
had  into  the  street.  The  plaintiffs,  who  were  already  in  occupation  of 
the  rooms  as  tenants  of  Grace,  continued  thenceforward  to  occupy  the 
rooms,  and  to  do  a  profitable  business  in  dentistry  there,  and  allowed 
their  signs  attached  to  the  outside  face  of  the  front  wall  to  remain 
there.  Subsequently  Grace  sublet  the  entire  premises  to  the  American 
Protective  League  for  a  term  of  years,  which  corporation  proceeded 
to  alter  the  building  by  taking  down  the  original  front  wall  thereof, 
and  by  extending  its  side  walls  to  the  street  line  and  erecting  a  new 
front  wall  to  the  entire  height  of  the  building,  so  as  to  enclose  the 
rooms  leased  and  occupied  by  the  plaintiffs,  and  to  interpose  another 
room  between  them  and  the  street.  This  bill  was  then  brought  by  the 
plaintiffs  to  prevent  such  alterations  from  being  made,  and  a  temporary 
injunction  was  issued  to  prevent  the  defendants  from  taking  down 
so  much  of  the  original  front  wall  as  enclosed  the  second  story  of 
the  building.     .     .     . 

AivivEN^  J.  The  determination  of  this  case  depends  upon  the  proper 
application  of  rules  of  law,  which  of  themselves  are  simple.  "The 
grant  of  anything  carries  an  implication,  that  the  grantee  shall  have 
all  that  is  necessary  to  the  enjoyment  of  the  grant,  so  far  as  the 
grantor  has  power  to  give  it.''  Salisbury  v.  Andrews,  19  Pick.  250, 
255.  And  in  order  to  determine  what  is  thus  granted  by  implica- 
tion, the  existing  circumstances,  and  the  actual  condition  and  situation 
of  that  which  is  granted,  may  be  looked  at.  Salisbury  v.  Andrews, 
19  Pick.  250,  255. 

The  premises  leased  to  the  plaintiffs  were  described  as  "the  rooms 
numbered  1,  2,  3,  and  4,  located  on  the  second  floor  of  building 
numbered  181,  and  located  on  Tremont  Street  in  said  Boston,  with 


Cll.    3)  DISTURBAXCE    OF  PRIVATE  EASEMENTS.  289 

all  the  rights  and  privileges  thereto  belonging."  These  rooms  included 
all  the  front  rooms  in  the  second  story  of  the  building.  The  building 
was  set  back  twelve  or  fourteen  feet  from  the  line  of  the  street,  and 
the  space  between  the  building  and  the  line  of  the  street  had  been 
used  as  a  part  of  the  sidewalk,  but  never  dedicated  to  the  public. 
The  rooms  were  therefore  front  rooms,  from  which  the  view  of 
the  street  was  unobstructed.  The  plaintiffs  hired  the  rooms  for 
business  purposes.  The  alterations  which  the  defendants  were  pro- 
ceeding to  make  would  have  the  effect  to  interpose  another  room  be- 
tween the  leased  rooms  and  the  street,  and  the  plaintiifs'  rooms  would 
no  longer  be  the  front  rooms  of  the  building. 

Alterations  of  this  character  are  inconsistent  with  the  rights  of  the 
plaintiffs  under  their  lease.  It  could  not  have  been  understood  at 
the  time  the  lease  was  given  that  a  right  to  make  such  alterations  was 
reserved.  It  is  not  like  the  case  of  the  erection  of  a  building,  either 
by  a  stranger  or  by  the  lessor,  upon  an  adjoining  lot,  which  is  adapted 
to  have  a  separate  building  erected  upon  it.  In  this  case  the  lessor, 
or  those  holding  his  title,  seek  to  make  such  changes  in  the  building 
itself  which  contains  the  leased  rooms  as  will  essentially  change  their 
character.  The  subject  of  the  lease  is  so  materially  changed  that  the 
rooms  will  no  longer  answer  to  the  description  of  them  in  the  lease, 
when  the  condition  and  situation  of  the  premises  are  also  looked  at. 
The  lease  carries  with  it  an  implication  that  the  lessor  should  not  thus 
proceed  to  impair  the  character  and  value  of  the  leased  premises. 
Salisbury  v.  Andrews,  128  Mass.  336.    Doyle  v.  Lord,  64  N.  Y.  432. 

We  do  not  regard  this  view  of  the  rights  of  the  parties  as  at  all 
inconsistent  with  the  decision  in  Keats  v.  Hugo,  115  Mass.  204,  and 
other  cases,  which  hold  or  intimate  that  the  necessity  must  be  pretty 
plain  in  order  to  warrant  the  implication  of  a  grant.  In  this  case  it 
is  plain  that  the  alterations  are  inconsistent  with  the  rights  of  the 
plaintiffs  under  their  lease. 

Under  this  state  of  things  the  defendants  might  properly  have  been 
enjoined  from  proceeding  with  their  proposed  alterations.  But  the 
learned  justice  before  whom  the  case  was  heard  in  the  vSuperior  Court 
took  a  different  view  of  the  rights  of  the  parlies,  relying,  it  is  said, 
upon  Keats  v.  Hugo,  115  Mass.  204;  and  accordingly  the  plaintiffs' 
prayer  for  an  injunction  was  refused.    The  defendants  thcrcu])()ii  pro- 

1  Eq.— 19 


290  REPARATION    AND    PREVENTION   OF   TORTS.  (Part    1 

ceeded  with  the  work,  until  now  it  is  completed,  so  far  at  least  as  the 
external  structure  of  the  building  is  concerned.  The  lease  to  the  plain- 
tiffs will  expire  on  the  last  day  of  February  next,  and,  if  the  de- 
fendants were  now  ordered  to  pull  down  their  structure,  they  might 
then  restore  it.  The  rules  under  which  mandatory  injunctions  have 
been  issued  for  such  a  purpose  should  not  be  applied  in  a  case  like  this. 
Attorney  General  v.  Algonquin  Club,  153  Mass.  447.  It  would  cause 
an  unnecessary  destruction  of  property.  In  view  of  the  early  ter- 
mination of  the  plaintiffs'  lease,  their  remedy  should  now  be  confined 
to  compensation  in  damages,  to  reimburse  them  for  the  injury  which 
they  have  suffered. 
Decree  accordingly. 


DANIEL  V.  FERGUSON. 

(Supreme  Court  of  Judicature,  1891,  2  Ch.  27.) 

The  plaintiff'  was  the  owner  of  long  leases  of  three  adjoining  houses, 
49,  51,  and  53  Hereford  Road,  Bayswater.  In  September,  1890,  the 
Defendant  prepared  to  build  upon  a  piece  of  ground  adjoining  the 
south  side  of  No.  49  a  large  building  to  be  called  Hereford  Mansions. 
The  plaintiff  had  the  plans  inspected  on  his  behalf,  and  came  to  the 
conclusion  that  the  proposed  erection  would  materially  affect  the 
access  of  hght  and  air  to  his  houses.  After  some  correspondence,  the 
plaintiff,  on  the  28th  of  November,  1890,  issued  his  writ  in  this  action 
for  an"  injunction,  and  on  Saturday  the  29th,  notice  of  motion  for  in- 
junction for  Friday,  the  5th  of  December,  was  by  leave  of  the  court 
served  on  the  defendant,  along  with  the  writ.  The  service  was  be- 
tween twelve  and  one  o'clock.  At  two  o'clock  the  defendant  turned  on 
a  large  number  of  men,  who  went  on  building  all  through  the  night 
and  until  2  P.  M.  on  Sunday.  On  Monday  they  resumed  work,  and 
ran  up  the  wall  adjoining  No.  49  to  the  height  of  about  thirty-nine 
feet  from  the  ground. 

On  Monday,  the  1st  of  December,  the  plaintiff,  being  informed 
of  the  rapid  progress  of  the  building,  applied  ex  parte  for  an  interim 
injunction  till  Friday,  which  was  granted.  Notice  of  this  was  given 
to  the  defendant  on  the  same  day,  and  he  ceased  building. 


Ch.    3)  DISTURBANCE    OF  PRIVATE  EASEMENTS,  291 

When  the  motion  of  which  notice  had  been  given  was  brought  on, 
the  defendant  adduced  evidence  with  a  view  to  showing  that  the 
plaintiff  had  no  easement  of  hght  over  the  defendant's  land.     .     .     . 

The  evidence  as  to  the  effect  of  the  building  went  to  show  that  it 
would  seriously  affect  the  light  of  No.  49. 

The  motion  of  which  notice  had  been  given  came  on  to  be  disposed 
of  on  the  19th  of  December,  and  Mr.  Justice  Stirling  made  an  order 
restraining  the  defendant  until  judgment  or  further  order  from  build- 
ing on  the  land  in  question  so  as  to  darken  the  lights  of  the  plaintiff's 
houses,  and  from  permitting  the  wall  or  building  which  he  had  erected 
to  remain  on  his  land. 

The  defendant  appealed.     .     .     . 

LiNDLEY,  L.  J.  I  am  of  opinion  that  this  appeal  must  be  dismissed 
without  dealing  with  the  question  to  be  decided  at  the  trial  whether 
the  plaintiff  has  an  easement  of  light.  It  appears  to  be  a  nice  ques- 
tion whether  there  was  not  at  one  time  such  a  unity  of  possession  as 
would  prevent  the  plaintiff's  houses  from  acquiring  the  easement. 
The  plaintiff  makes  out  a  case*  entitling  him  to  an  injunction  to  keep 
matters  in  statu  quo  till  the  trial.  That  being  so,  the  defendant,  upon 
receiving  notice  that  an  injunction  is  going  to  be  applied  for,  sets  a 
gang  of  men  to  work  and  runs  up  his  wall  to  a  height  of  thirty-nine 
feet  before  he  receives  notice  that  an  injunction  has  been  granted. 
It  is  right  that  buildings  thus  run  up  should  be  pulled  down  at  once, 
without  regard  to  what  the  result  of  the  trial  may  be. 

Kay,  h.  J.  I  am  of  the  same  opinion.  The  questions  to  be  de- 
cided at  the  trial  may  be  of  some  nicety ;  but  this  is  not  the  time  to 
decide  them.  After  the  defendant  had  received  notice  on  Saturday 
that  an  injunction  was  going  to  be  applied  for,  he  set  a  large  number 
of  men  to  work,  worked  all  night  and  through  nearly  the  whole  of 
Sunday  and  by  Monday  evening,  at  which  time  he  received  notice  of 
an  interim  injunction,  he  had  run  up  his  wall  to  a  height  of  thirty- 
nine  feet.  Whether  he  turns  out  at  the  trial  to  be  right  or  wrong, 
a  building  which  he  has  erected  under  such  circumstances  ought  to 
be  at  once  pulled  down,  on  the  ground  that  the  erection  of  il  was  an 
attempt  to  anticipate  the  order  of  the  court.  To  vary  the  ordir  uikUt 
appeal  would  hold  out  an  encouragement  to  other  ])e()i)le  lo  hurry  on 
their  buildings  in  the  hope  that  when  they  were  once  up  the  court 
might  decline  to  order  them  to  be  pulled  down.     I  think  that  this  wall 


292  EEPAEATION    AND    PEEVENTION   OF   TORTS.  (Part    1 

ought  to  be  pulled  down  now  without  regard  to  what  the  result  of 
the  trial  may  be.    The  appeal  will  therefore  be  dismissed. 


KREHL  V.  BURRELL. 

(In  Chancery,  1878,  7  Ch.  D.  551.) 

This  was  an  action  brought  by  the  Plaintiff,  as  owner  and  occupier 
of  a  messuage  or  a  public-house  No.  27  Coleman  Street,  in  the  City  of 
London,  known  as  the  "Three  Tuns,"  with  a  restaurant  and  dining- 
room,  to  obtain  an  injunction  to  restrain  the  Defendant  from  erecting 
a  building  on  the  site  of  an  adjoining  court,  called  Windmill  Court, 
over  which  the  Plaintiff  and  his  predecessors  in  title  claimed  an  un- 
interrupted right  of  way  to  or  from  the  said  messuage  for  forty 
years.     .     .     . 

JessKL,  M.  R.  The  plaintiff  in  this  action  was  the  owner  of  an  inn 
or  public-house,  No.  V? ,  Coleman  Street,  in  the  City  of  London,  with 
which  he  and  his  predecessors  in  title  had,  and  enjoyed  for  many 
years  without  interruption,  a  user  of  a  way  or  passage,  and  he  claim- 
ed to  be  entitled  as  of  right  to  such  user.  The  user  was  undoubted, 
and  the  right  was  never  disputed  until  the  purchase  by  the  Defendant 
recently  of  the  adjoining  houses.  The  defendant  threatened  to  ob- 
struct the  way,  and  the  user  of  the  passage  or  court,  by  erecting  a 
large  building.  The  Plaintiff  gave  notice  to  the  Defendant  that  he 
was  entitled  to  such  way  as  of  right,  and  on  the  Defendant  per- 
sisting in  his  threats  the  Plaintiff  brought  an  action,  and  issued  a 
writ  for  an  injunction  on  the  27th  of  April,  1876.  Notwithstanding 
that  the  writ  was  issued,  and  in  spite  of  the  assertion  by  the  Plain- 
tiff of  his  rights,  the  Defendant,  w-ith  full  notice,  and  without  any 
reasonable  ground  that  I  could  discover  at  the  trial  of  the  action, 
and  indeed  without  any  ground  at  all,  for  none  has  been  brought  before 
me,  insisted  upon  obstructing  the  way,  and  built  over  it  a  solid,  and 
I  am  told,  a  large  and  expensive  structure,  which  completely  blocked 
it  up.     .     .     . 

The  question  I  have  to  decide  is,  whether  the  appeal  to  me  by  the 
Defendant  to  deprive  the  Plaintiff  of  his  right  of  way,  and  give  him 
money  damages  instead,  can  b"e  entertained.     I  think  it  cannot.     It  is 


oil.    3)  DISTURBANCE    OF  PRIVATE  EASEMENTS.  293 

true  he  has  another  way  to  his  house  by  Coleman  street;  but  it  was 
obvious,  when  the  facts  were  mentioned  to  me,  that  as  regards  the 
custom  of  the  house  it  would  be  very  seriously  interferred  with  by 
depriving  it  of  the  back  entrance,  which  was  very  much  used,   for 
special   and   intelligible   reasons,   by   the   customers.      That   being   so, 
the  question  I  have  to  consider  is,  whether  the  Court  ought  to  exercise 
the  discretion  given  by  the  statute,  by  enabling  the  rich  man  to  buy 
the  poor  man's  property  without  his  consent,  for  that  is  really  what  it 
comes  to.     If  with  notice  the  right  belonging  to  the  Plaintiff,  and  in 
defiance   of   that   notice,   without   any   reasonable   ground,   and   after 
action  brought,  the  rich  Defendant  is  to  be  entitled  to  build  up  a  house 
of  enormous  proportions,  at  an  enormous  expense,  and  then  to  say 
in  effect  to  the  Court,  "You  will  injure  me  a  great  deal  more  by  pull- 
ing it  down  than  you  will  benefit  the  poor  man  by   restoring  his 
right,"— of  course  that  simply  means  that  the  Court  in  every  case,  at 
the  instance  of  the  rich  man,  is  to  compel  the  poor  man  to  sell  him  his 
property  at  a  valuation.     That  would  be  the  real  result  of  such  a 
decision.     It  appears  to  me  that  it  never  could  have  been  intended  by 
the  Legislature  to  bring  such  a  result  about.    It  never  could  have  been 
meant  to  invest  the  Court  of  Chancery  with  a  new  statutory  power 
somewhat  similar  to  that  with  which  railway  companies  have  been 
invested  for  the  public  benefit  under  the  Lands  Clauses  Act,  to  com- 
pel people  to  sell  their  property  without  their  consent  at  a  valuation. 
I  am  quite  satisfied  nothing  of  the  kind  was  ever  intended,  and  that,  if 
I  acceded  to  this  view,  instead  of   exercising  the  discretion   which 
was  intended  to  be  reposed  in  me  I  should  be  exercising  a  new  legis- 
lative authority  which  was  never  intended  to  be  conferred  by  the 
words  of  the  statute,  and  I  should  add  one  more  to  the  number  of  in- 
stances which  we  have  from  the  days  in  which  the  Bible  was  written 
until  the  present  moment,  in  which  the  man  of  large  possessions  has 
endeavored  to  deprive  his  neighbor,  the  man  with  small  possessions, 
of  his  property,  with  or  without  adequate  compensation. 


294  EEPAKATION    AND    PEEVENTION   OF   TORTS.  (Part    1 

COBB  V.  SAXBY. 
(Supreme  Court  of  Judicature,  1914,  3  K.  B.  823.) 

Action  tried  by  Rowlatt  J.  without  a  jury. 

The  plaintiff  was  the  owner  in  fee  simple  and  occupier  of  certain 
premises,  No.  33,  King  street,  Margate,  consisting  of  a  dwelling-house 
with  a  shop  on  the  ground  floor.  The  defendant  was  the  leaseholder 
and  occupier  of  a  house  and  shop.  No.  35,  King  street,  next  to  the 
plaintiff's  house,  the  side  walls  of  the  two  buildings  being  in  contact 
with  each  other.  Both  houses  opened  directly  into  the  street,  but  the 
front  of  the  defendant's  house  projected  into  the  street  for  a  distance 
of  eighteen  inches  beyond  the  front  of  the  plaintiff's  house. 

In  1910  the  plaintiff  caused  to  be  affixed  to  the  front  of  his  house 
and  at  right  angles  thereto  two  boards  sixteen  inches  wide,  one  above 
the  other,  which  reached  from  a  point  eight  inches  above  the  pavement 
to  a  height  of  twenty-two  feet  at  a  distance  varying  from  two  to  nine 
inches  from  that  part  of  the  defendant's  side  wall  which  projected  be- 
yond the  front  of  the  plaintiff's  house.  There  were  no  windows  or 
doors  or  other  openings  in  the  defendant's  side  wall. 

The  action  was  brought  by  the  plaintiff  for  an  injunction  to  restrain 
the  defendant  from  placing  his  advertisements  on  the  boards.  The 
defendant  by  his  defence  admitted  he  had  acted  wrongfully  in  so  do- 
ing, and  gave  an  undertaking  not  to  repeat  the  trespasses  and  paid  40s. 
into  Court  which  was  accepted  by  the  plaintiff  in  satisfaction  of  his 
claim ;  and  the  only  question  at  the  trial  was  that  raised  by  the  de- 
fendant's counter-claim. 

The  defendant  by  his  counter-claim  alleged  (inter-alia)  that  the 
plaintiff's  act  in  placing  the  boards  where  they  were  was  wrongful, 
and  the  defendant  had  thereby  suffered  damage  in  that  the  boards 
obstructed  the  access  to  and  diminished  the  enjoyment  of  the  de- 
fendant's premises,  and  prevented  him  from  examining  and  repair- 
ing his  wall  and  from  advertising  on  it  and  from  making  a  door  in  it. 

The  defendant  claimed  damages  and  an  injunction.     .     .     . 

Rowlatt,  J.  .  .  .  For  the  purpose  of  my  judgment  I  will  as- 
sume, though  it  has  not  been  strictly  proved,  that  the  title  to  the  subsoil 
of  that  part  of  the  roadway  which  is  in  the  corner  formed  by  the  pro- 


Ch.    3)  DISTUEBAXCE    OF  PRIVATE  EASEMENTS.  295 

jection  of  the  defendant's  wall  is  in  the  plaintiflf  as  the  owner 
of  No.  33.  The  position  taken  up  by  the  plaintiff  is,  as  I  understand 
it,  that  if  the  defendant  were  at  any  time  to  make  a  doorway  in  the 
projecting  part  of  his  wall,  he  (the  plaintitif)  would  not  insist  on  main- 
taining the  boards  in  such  a  position  that  they  would  interfere  with 
the  defendant's  right  of  egress  from  his  premises,  and,  therefore, 
I  do  not  propose  to  deal  with  the  case  on  the  footing  that  the  plain- 
tiff is  threatening  to  obstruct  the  egress  from  any  door  on  the  de- 
fendant's premises.  But  the  plaintiff  does  claim  the  right  to  main- 
tain the  boards  in  their  present  position  with  the  result  that  the  de- 
fendant is  prevented  from  using  the  wall  for  the  purpose  of  placing 
advertisements  on  it,  and  the  plaintiff  says  that  he  will  only  take 
the  boards  down  at  such  reasonable  times  as  the  defendant  may  re- 
quire for  the  purpose  of  repairing  the  wall  and  a'fter  reasonable  notice. 
In  my  opinion  the  contentions  raised  by  the  defendant's  counter- 
claim are  well  founded.  It  is  said  on  his  behalf  that  the  existence  of 
these  boards  in  their  present  position  constitutes  an  invasion  of  the 
private  rights  which  the  defendant  possesses  by  reason  of  the  con- 
tiguity of  his  premises  to  the  public  highway.  It  is  well  settled  law 
that  the  owner  of  land  adjoining  a  highway  has  the  private  right  of 
passing  from  his  premises  on  to  the  highway,  and  if  that  right  is  ob- 
structed and  he  brings  an  action  against  the  person  causing  the  ob- 
struction, he  is  not  in  the  position  of  a  member  of  the  public  who 
complains  of  an  obstruction  to  the  highway  which  especially  affects  him, 
but  he  is  a  person  who  has  a  cause  of  action  by  reason  of  the  interfer- 
ence with  or  obstructions  to  his  private  right.  Although  no  authority 
precisely  in  point  has  been  cited,  I  am  of  opinion  that  the  owner  of 
a  house  adjoining  a  public  highway  has  precisely  the  same  rights, 
as  regards  the  highway,  with  respect  to  the  wall  of  his  house  as  he 
has  in  the  case  of  a  door  or  other  entrance  leading  from  his  house 
on  to  the  highway.  He  has  the  right  to  do  anything  he  likes  to  the 
wall,  for  example  to  display  advertisements  upon  it,  and  if  these 
rights  are  invaded  or  obstructed,  he  has,  in  my  opinion,  a  good  cause 
of  action  against  the  person  causing  the  interference  with  his  rights. 
Take  the  case  of  a  wall  of  a  house  adjoining  a  highway  which  has 
a  window  in  it  which  the  owner  of  the  houses  uses  for  the  display 
of  his  goods,  or  suppose  the  owner  of  the  house  places  on  the  wall 
pictures  or  advertisements  of  goods  which  he  has  for  sale,  it  is  to  his 
interest  that  the  members  of  the  public  using  the  highway  should  be 


29(>  REPAEATTON    AND    PREVENTION   OF   TORTS.  (Part    1 

able  to  look  in  at  the  window  or  to  gaze  at  the  advertisements  on  the 
wall,  and  if  any  one  prevents  the  public  from  so  doing  the  rights  of 
the  owner  of  the  wall  are  invaded.  It  is  to  my  mind  unthinkable  that, 
if  a  man  were  to  hold  a  screen  in  front  of  a  shop  window  and  thus 
prevent  the  public  from  looking  in,  he  should  be  allowed  to  justify 
his  so  doing  on  the  ground  that,  because  he  was  not  preventing  egress 
from  the  shop  to  the  highway,  he  was  not  interfering  with  any  right  of 
the  owner  of  the  shop.  In  my  opinion,  the  law  does  not  in  those  cir- 
cumstances leave  the  owner  of  the  premises  without  a  remedy. 

For  these  reasons  I  am  of  opinion  that  on  the  facts  of  this  case  the 
defendant  is  entitled  to  judgment  on  his  counter-claim. 


SECTION  V.  OBSTRUCTION  OF  PUBLIC  RIGHTS. 


FESSLER  V.  TOWN  OF  UNION. 

(New  Jersey  Court  of  Chancery,  1904,  67  N.  J.  Eq.  14,  56  Atl.  272.) 

The  object  of  this  bill  is  to  restrain  a  nuisance  in  the  nature  of 
a  purpresture.     .     .     . 

The  complainant  is  the  owner  of  ten  lots,  each  twenty-five  feet 
by  one  hundred  feet,  and  each  facing  on  Franklin  street,  in  the  town 
of  Union,  in  the  county  of  Hudson.  The  rear  of  six  of  which  lots, 
and  also  the  rear  of  two  other  lots  of  the  same  size  which  do  not  face 
on  Franklin  street,  she  alleges  bound  upon  a  public  square  which  was 
dedicated  to  the  public  by  the  owners  of  a  tract  of  land  which  com- 
prised the  complainant's  lots,  and  many  others  in  the  neighborhood, 
by  the  usual  mode  of  laying  the  plot  out  in  streets  and  lots,  filing  the 
same  in  the  county  clerk's  office  and  selling  and  conveying  lots  by 
reference  to  the  map.     .     .     . 

The  nuisance  of  which  she  complains  is  the  erection  of  a  fire-bell 
tower  on  that  square  and  within  about  thirty  feet  of  her  premises. 
The  structure  is  composed  of  iron  posts,  beams  and  braces.     .     .     . 

Pitney,  V.  C.  I  am  of  the  opinion  that  the  dedication  in  this  case 
was  for  the  purpose  of  use  by  the  public  as  an  open  pleasure  ground 


Ch.    3)  OBSTRUCTIOX   OF    PUBLIC    RIGHTS.  297 

— a  ground  with  trees  and  a  small  lake,  if  the  the  latter  was  found 
desirable  and  practicable;  that  the  dedication  did  not  include  the  use 
of  it  for  a  public  building,  and  that  the  defendant  had  no  right  under 
the  original  dedication  to  erect  any  building  upon  it.     .     .     . 

We  come,  then,  to  the  question  of  the  complainant's  standing  in  this 
court. 

The  general  rule  is  that  any  encroachment  on  a  public  highway  or 
public  square  is  an  ofifense  against  the  public,  punishable  by  indict- 
ment only,  and  that  one  or  more  of  the  public  cannot  maintain  an 
action  at  law  or  in  equity  therefor  unless  he  is  so  situated  as  to  be 
injured  thereby  in  a  manner  and  to  an  extent  peculiar  to  himself  as 
an  individual  as  distinguished  from  himself  as  a  member  of  the 
public  at  large. 

The  complainant  is  the  owner  of  ten  lots,  comprising  a  boundary 
on  the  square  in  question  of  one  hundred  and  fifty  feet  in  the  im- 
mediate neighborhood  of  the  tower  in  question.  It  is  within  thirty 
feet  of  her  house  lot,  and  the  existence  in  that  place  of  the  tower 
and  the  ringing  of  the  bell  in  case  of  fire  will,  in  my  judgment,  pro- 
duce an  effect  injurious  to  the  enjoyment  of  her  property,  different 
in  a  marked  degree  to  that  of  the  inhabitants  generally  of  the  town 
of  Union,  which  is  a  closely  built  town  of  from  fifteen  thousand  to 
twenty  thousand  inhabitants. 

There  may  be  a  few  other  lot  owners  in  the  immediate  vicinity  who 
are  interested  in  the  same  degree,  or  nearly  so,  as  the  complainant,  and 
they  may  have  the  same  standing  as  the  complainant,  but  the  fact  that 
they  have  not  joined  in  this  suit,  or  brought  a  suit  on  their  own  ac- 
count, cannot  prejudice  the  rights  of  the  complainant,  if  those  rights 
are,  as  I  suppose  them  to  be,  peculiar  to  her  by  reason  of  her  vicinity 
to  the  square. 

But,  of  course,  if  I  am  right  in  my  conclusion  that  she  has,  by 
reason  of  her  owning  lands  bounding  on  the  square,  a  right  in  the 
nature  of  a  private  right,  then  she  has  a  right  in  addition  to  her  being 
a  member  of  the  public,  which  dispenses  with  the  necessity  of  resort- 
ing to  the  doctrine  of  peculiar  injury. 

Next  as  to  her  right  to  maintain  an  action  against  a  municipality. 

No  point  was  raised  by  counsel  for  the  defendant  that  his  client  was 
entitled  to  any  immunity  from  action  if,  in  point  of  fact,  its  action 
was  unwarranted  by  law ;  and  no  case  was  cited  by  counsel  on  either 
side  bearing  precisely  on  this  point,  nor  have  I  been  able  to  find  any. 


298  REPARATION    AND    PREVENTION   OF   TORTS.  (Part    1 

Moreover  I  find  no  case,  in  this  state  at  least,  where  the  municipal 
authorities  have  ever  been  charged  with  a  breach  of  their  trust  in 
that  behalf. 

But  I  think,  upon  general  principles,  the  complainant  must  have  a 
right  of  equitable  action,  otherwise  the  inhabitants  not  especially  in- 
terested in  the  existence  of  that  square  might  unite  and  elect  a  common 
council  which  might  be  so  far  recreant  to  its  duty  and  regardless 
of  the  rights  of  the  landowners  as  to  obliterate  the  sqviare  absolutely 
and  devote  it  to  business  purposes.     ... 

I  think  that  the  complainant  is  entitled  to  a  decree  against  the 
municipality  providing  for  the  removal  of  the  tower  and  of  all  its 
constituent  parts,  and  that  she  is  entitled  to  recover  her  costs  be- 
sides a  reasonable  counsel  fee,  which  I  shall  fix  upon  hearing  parties. 


THE  STATE  v.  THE  OHIO  OIL  COMPANY 

(Supreme  Court  of  Indiana,  1897,  150  Ind.  21,  49  N.  E.  809.) 

McCabe,  J.  The  State  of  Indiana,  by  her  Attorney-General  and  the 
prosecuting  attorney  of  the  Madison  Circuit  Court,  brought  suit 
against  the  appellee,  the  Ohio  Oil  Company,  seeking  to  enjoin  it  from 
wasting  natural  gas.     .     .     . 

The  appellee  contends  that  "the  question  of  the  exhaustion  of 
the  gas  is  certain  according  to  the  averments  in  both  the  injunction 
cases,  and  the  question,  therefore  is,  who  shall  be  permitted  to  exhaust 
it."  "The  State  contends,"  says  appellee,  "that  the  manufacturers  and 
gas  companies  shall  be  allowed  that  privilege  for  the  purpose  of  bar- 
gain and  sale,  although  it  incidentally  avers  benefit  to  the  people, 
and  all  this  to  the  exclusion  of  an  oil  company  which  is  also  using 
gas  for  the  purpose  of  a  legitimate  business.  In  such  matters  of 
private  concern  the  State  has  no  interest  and  should  not  have  any." 

It  is  true  the  production  of  oil  is  a  legitimate  business,  but  the 
waste  and  destruction  of  natural  gas  which  appellee's  demurrer  ad- 
mits it  is  engaged  in,  defiantly,  constantly,  and  in  utter  contempt  of 
the  laws  of  Indiana,  and  the  welfare  and  comfort  of  its  citizens,  is 
not  only  a  legitimate  business,  but  has  been  placed  under  the  ban  of 
two  prohibitory  statutes  in  this    State.      Sections   2316-2318,   Burns' 


Cll.    3)  OBSTRUCTION   OF    PUBLIC    EIGHTS.  299 

R.  S.  1894  (Acts  1891,  p.  55)  ;  section  7510.  Burns'  R.  S.  1894  (Acts 
1893,  p.  300).  Section  1  of  the  latter  act  provides:  "That  it  shall 
be  unlawful  for  any  person,  firm  or  corporation  having  possession 
or  control  of  any  natural  gas  or  oil  well,  whether  as  a  contractor,  own- 
er, lessee,  agent  or  manager,  to  allow  or  permit  the  flow  of  gas  or  oil 
from  any  such  well  to  escape  into  the  open  air,  without  being  confin':;d 
within  such  well  or  proper  pipes,  or  other  safe  receptacle  for  a  long- 
er period  than  two  days  next  after  gas  or  oil  shall  have  been  struck 
in  such  well.  And  thereafter  all  such  gas  or  oil  shall  be  safely  and  se- 
curely confined  in  such  well,  pipes  or  other  safe  and  proper  receptacles." 
The  constitutionality  of  the  latter  act  is  assailed  by  the  appellee.  But 
the  former  act,  being  very  much  of  the  same  nature  as  regards  its 
constitutionality  as  the  latter,  was  assailed  by  the  appellant  in  Town- 
send  V.  State,  147  Ind.  624,  for  every  conceivable  constitutional  ob- 
jection, and  for  every  objection  urged  to  the  act  now  under  consider- 
ation, and  this  court  in  that  case  upheld  the  constitutionality  of  that 
act.     .     .     . 

Appellee's  counsel  have  conceded  that  the  pressure  in  gas  wells 
since  the  discovery  of  gas  in  this  State  has  fallen  from  350  pounds 
to  150  pounds.  This  very  strongly  indicates  the  possibility,  if  not 
the  probability,  of  exhaustion.  In  the  light  of  these  facts,  one  who 
recklessly,  defiantly,  persistently,  and  continuously  wastes  natural  gas, 
and  boldly  declares  his  purpose  to  continue  to  do  so,  as  the  complaint 
charges  appellee  with  doing,  all  of  which  it  admits  to  be  true  by  its 
demurrer,  ought  not  to  complain  of  being  branded  as  the  enemy  of 
mankind.  But  appellee  tries  to  excuse  its  conduct  on  the  score  that 
it  cannot  mine  and  utilize  oil  under  and  in  its  land  without  wasting 
the  gas.  But  there  is  nothing  in  the  record  to  bear  out  that  claim. 
However,  if  there  was,  it  would  not  furnish  a  valid  excuse.  It  is  not 
the  use  of  unlimited  quantities  of  gas  that  is  prohibited,  but  it  is  the 
waste  of  it  that  is  forbidden.  The  object  and  policy  of  that  inhibition 
is  to  prevent,  if  possible,  the  exhaustion  of  the  store-house  of  nature, 
wherein  is  deposited  an  element  that  ministers  more  to  the  comfort, 
happiness,  and  well-being  of  society  than  any  other  of  the  bounties  ot 
the  earth.  Even  if  the  appellee  cannot  draw  oil  from  its  well  without 
wasting  gas,  it  is  not  denied  that  it  may  draw  gas  therefrom,  and 
utilize  it  without  wasting  the  oil.  But,  even  if  it  can  not  draw  oil 
from  such  wells  without  wasting  gas,  and  is  forbidden  by  injunction 
so  to  do,  it  is  only  applying  the  doctrine  that  the  owner  must  so  use 


300  REPAEATION    AND    PEEVENTION   OF   TORTS.  (Part    1 

his  own  property  as  not  to  injure  ofhers.  Tt  may  use  its  wells  to  pro- 
duce gas  for  a  legitimate  use,  and  must  so  use  them  as  not  to  injure 
others  or  the  community  at  large.  The  continued  waste  and  exhaustion 
of  the  natural  gas  of  Indiana  through  appellee's  wells  would  not  only 
deny  to  the  inhabitants  the  many  valuable  uses  of  the  gas,  but  the 
State,  whose  many  quasi-public  corporations  have  many  millions  of 
dollars  invested  in  supplying  gas  to  the  State  and  its  inhabitants,  will 
suffer  the  destruction  of  such  corporations,  the  loss  of  such  invest- 
ments and  a  source  of  large  revenues.  To  use  appellee's  wells  as  they 
have  been  doing,  they  injure  thousands  and  perhaps  millions  of  the 
people  of  Indiana,  and  the  injury,  the  exhaustion  of  natural  gas,  is  not 
only  an  irreparable  one,  but  it  will  be  a  great  public  calamity.  The 
oil  appellee  produces  is  of  very  small  consequence  as  compared  with 
that  calamity  which  it  mercilessly  and  cruelly  holds  over  the  heads  of 
the  people  of  Indiana,  and,  in  efifect,  says:  "It  is  my  property,  to  do 
as  I  please  with,  even  to  the  destruction  of  one  of  the  greatest  interests 
the  State  has,  and  you  people  of  Indiana  help  yourself  if  you  can. 
What  are  you  going  to  do  about  it  ?" 

We  had  petroleum  oil  for  more  than  a  third  of  a  century  before 
its  discovery  in  this  State,  imported  from  other  states,  and  we 
:ould  continue  to  do  so  if  the  production  of  oil  should  cease  in  this 
State.  But  we  cannot  have  the  blessings  of  natural  gas  unless  the 
measures  for  the  preservation  thereof  in  this  State  are  enforced  against 
the  lawless.  We  therefore  conclude  that  the  facts  stated  in  the  com- 
plaint make  a  case  of  a  public  nuisance  which  the  appellant  has  a 
right  to  have  abated  by  injunction,  and  that  the  complaint  states 
facts  sufficient  to  constitute  a  cause  of  action.  Hence,  the  circuit 
court  erred  in  sustaining  appellee's  demurrer  to  the  complaint.  The 
judgment  is  reversed,  and  the  cause  remanded,  with  instructions  to 
overrule  said  demurrer,  and  require  the  defendant  to  answer  the  com- 
plaint, and  for  further  proceedings  in  accordance  with  this  opinion. 


SECTION  VI.  PUBLIC  NUISANCE. 


EVERETT  V.  PASCHALIv. 

(Supreme  Court  of  Washington,  1910,  61  Wash.  47,  111  Pac.  879.) 
Chadwick,  J.     The  findings  of  the  trial  judge  show  that  plaintififs 
are  the  owners  of,  and  reside  upon,  lot  14,  block  19,  Madison  Park 


Ch.    3)  PUBLIC  NUISANCE,  301 

addition  to  the  city  of  Seattle,  in  King  County ;  that  their  property 
is  of  the  value  of  $2,000.  Defendant  is  the  owner  of  the  south  half 
of  lots  12  and  13,  block  9,  upon  which  a  cottage  is  situated.  An  alley- 
way separates  plaintififs'  lot  from  the  fractional  lots  of  the  defendant. 
On  November  29,  1909,  defendant  opened,  and  has  since  maintained 
in  his  cottage,  a  private  sanitarium  for  the  treatment  and  care  of  per- 
sons afflicted  with  tuberculosis.  The  sanitarium  has  a  capacity  for 
accommodating  ten  patients,  and  since  opening,  there  have  been  from 
four  to  ten  patients  under  treatment.     ,     .     . 

The  text  of  our  decision  has  been  aptly  stated  by  counsel  for  appel- 
lant :  "Can  a  tuberculosis  hospital  be  maintained  in  a  residential  portion 
of  a  city,  where  its  maintenance  depreciates  the  value  of  contiguous 
property  from  thirty-three  and  one-third  to  fifty  per  cent,  and  where 
its  existence  detracts  from  the  comfortable  use  of  such  residential 
property?"  In  the  evolution  of  the  law  of  nuisance,  there  has  grown 
an  element  not  clearly  recognized  at  common  law.  Blackstone,  3  Com. 
216,  has  defined  a  nuisance  to  be  "anything  that  worketh  hurt,  in- 
convenience, or  damage" ;  reducing  the  nuisances  which  affect  a  man's 
dwelling  to  three,  (1)  overhanging  it;  (2)  stopping  ancient  lights,  and 
(3)  corrupting  the  air  with  smells.  It  will  be  seen  that,  within  these 
definitions,  the  maintenance  of  a  sanitarium  conducted  with  due  at- 
tention to  sanitation  is  not  a  nuisance,  for  it  creates  no  physical  in- 
conveniences whatever.  But  a  new  element  in  the  law  of  nuisance 
has  been  developed,  first  by  judicial  decisions,  and  later,  by  declaratory 
statutes — that  is,  the  comfortable  enjoyment  of  one's  property.  It  is 
written  in  the  statutes  of  this  state:  "Nuisance  consists  in  unlaw- 
fully doing  an  act,  or  omitting  to  perform  a  duty,  which  act  or  omis- 
sion either  annoys,  injures  or  endangers  the  comfort,  repose,  health 
or  safety  of  others,  offends  decency  .  .  .  or  in  any  way  renders 
other  persons  insecure  in  Hfe,  or  in  the  use  of  property."  Rem.  & 
Bal.  Code,  §  8309. 

Respondent  contends,  and  the  court  has  found,  that  the  property 
of  respondent  is  not  a  nuisance  per  se^  and  that  it  is  so  conducted  that 
it  is  not,  and  cannot  be,  a  nuisance  by  reason  of  its  use;  that  there 
is  no  real  danger ;  that  the  fear  or  dread  of  the  disease  is,  in  the  light 
of  scientific  investigation,  unfounded,  imaginary,  and  fanciful;  and 
that  the  injury,  if  any,  is  damnum  absque  injuria.  On  the  other  hand, 
the  appellants  insist  thai  the  location  of  a  sanitarium  for  the  treat- 


302  EEPAEATION    AND    PREVENTION    OF    TOETS.  (Part    1 

ment  of  a  disease,  of  which  there  is  a  positive  dread  which  science 
has  so  far  failed  to  combat,  so  robs  them  of  that  pleasure  in,  and 
comfortable  enjoyment  of,  their  home  as  to  make  it  an  actionable 
nuisance  under  the  statute ;  and  furthermore,  under  the  findings  of  the 
court,  that  the  presence  of  the  sanitarium  in  a  district  given  over  to 
residences,  and  which  have  depreciated  property  from  thirty-three  to 
fifty  per  cent,  is  such  a  deprivation  of  property  as  will  warrant  a  decree 
in  their  favor  under  the  maxim  sic  iitcre  tiio  ut  alienum  non  laedas. 
Waiving  for  the  present  the  substantial  pecuniary  damage  which  the 
court  found  to  exist,  and  addressing  ourselves  to  the  principle  under- 
lying the  lower  court's  decree — that  is,  that  the  danger  being  only  in 
the  apprehension  of  it,  a  fear  unfounded  and  unsustained  by  science, 
a  demon  of  the  imagination — the  courts  will  take  no  account  of  it; 
if  dread  of  the  disease  and  fear  induced  by  the  proximity  of  the  sani- 
tarium, in  fact,  disturb  the  comfortable  enjoyment  of  the  property 
of  the  appellants,  we  question  our  right  to  say  that  the  fear  is  un- 
founded or  unreasonable,  when  it  is  shared  by  the  whole  public  to 
such  an  extent  that  property  values  are  diminished.  The  question  is, 
not  whether  the  fear  is  founded  in  science,  but  whether  it  exists;  not 
whether  it  is  imaginary,  but  whether  it  is  real,  in  that  it  afifects  the 
movements  and  conduct  of  men.  Such  fears  are  actual,  and  must  be 
recognized  by  the  courts  as  other  emotions  of  the  human  mind.  That 
fear  is  real  in  the  sense  indicated,  and  is  the  most  essential  human 
of  all  emotions,  there  can  be  no  doubt.  Mr.  Fernande  Mazade  has 
addressed  his  inquiries  to  this  subject,  and  has  but  recently  given  his 
views,  as  well  as  the  opinions  of  others,  in  the  Paris  Revue.  Current 
Literature,  Vol.  49,  No.  3,  p.  290  (Sept.  1910).  The  opinions  collect- 
ed are  worth  noticing.  Alfred  Capus,  the  psychological  playwright, 
says:  "Fear  consists  in  capitulating  to  the  instinct  of  self-preser- 
vation." M.  Frederick  Passy,  of  the  Institute,  "The  bravest  of  men 
have  known  what  fear  is."  M.  Sicard,  a  professor  of  the  Faculty  of 
Medicine,  considers  fear  or  courage  to  be  the  result  of  temperament, 
training,  and  thought  and  which  can  be  partially  eradicated  by  reason- 
ing and  education,  but  never  to  be  overcome  in  its  most  acute  form, 
namely,  the  instinct  of  self-preservation.  The  conclusion  of  the 
editor  is  that,  "it  is  far  from  being  unanimously  admitted  that  fear 
is  a  ridiculous  malady,  or  one  of  which  one  need  be  ashamed  in  ordi- 
nary circumstances." 


Cll.    3)  PUBLIC  NUISANCE.  303 

Comfortable  enjo3'ment  means  mental  quiet  as  well  as  physical  com- 
fort.. In  Deaconess  Home  &  Hospital  v.  Bontjes,  207  111.  553,  69  N.  E. 
748,  64  L.  R.  A.  215,  under  conditions  which  "greatly  disturb  the 
comfort  and  nerves  and  sleep  of  the  inmates  of  complainants'  home, 
and  she  and  her  family  were  greatly  annoyed  and  distressed  in  mind," 
an  injunction  was  sustained  against  the  hospital  as  destructive  to  the 
peace,  quiet,  and  comfort  of  the  complainant.  What  "comfortable 
enjoyment"  may  be,  must  be  determined  by  reference  to  the  substan- 
tive word  "comfort."  This  word  has  not  been  specifically  defined  in 
connection  with  nuisance  cases.  In  Ross  v.  Butler,  19  N.  J.  Eq.  294, 
97  Am.  Dec.  654,  Chancellor  Zabriskie  says:  "No  precise  definition 
can  be  given;  each  case  has  to  be  judged  by  itself;"  but  in  Forman 
V.  Whitney,  2  Keyes  (N.  Y.)  165,  Webster's  definition  is  adopted: 
"It  implies  some  degree  of  positive  animation  of  the  spirits,  or  some 
pleasurable  sensations  derived  from  happy  and  agreeable  prospects;" 
the  court  adding:  "The  word  embraces  whatever  is  requisite  to  give 
security  from  want,  and  furnish  reasonable  physical,  mental  and  spir- 
itual enjoyment." 

Nuisance  is  a  question  of  degree,  depending  upon  varying  circum- 
stances. There  must  be  more  than  a  tendency  to  injury;  there  must  be 
something  appreciable.  The  cases  generally  say  tangible,  actual,  meas- 
unable,  or  subsisting.  But  in  all  cases,  in  determining  whether  the  in- 
jury charged  comes  within  these  general  terms,  resort  should  be  had 
to  sound  common  sense.  Each  case  must  be  judged  by  itself.  Joyce, 
Nuisance,  19.  Regard  should  be  had  for  the  notions  of  comfort  and 
conveniences  entertained  by  persons  generally  of  ordinary  tastes  and 
susceptibilities.  Columbus  Gas  &  Coke  Co.  v.  Freeland,  12  Ohio  St. 
392;  Barnes  v.  Hathorn,  54  Me.  124.  The  nuisance  and  discomfort 
must  afifect  the  ordinary  comfort  of  human  existence  as  understood 
by  the  American  people  in  their  present  state  of  enlightenment.  Joyce, 
Nuisance,  §  20.  The  theories  and  dogmas  of  scientific  men,  though 
provable  by  scientific  reference  cannot  be  held  to  be  controlling  unless 
shared  by  the  people  generally.  In  Grover  v.  Zook,  44  Wash.  494,  87 
Pac.  638,  this  court  said:  "'i'hat  pulmonary  tuberculosis  is  both  con- 
tagious and  hereditary,  as  these  terms  are  understood  (although  not 
in  a  strictly  technical  and  professional  sense),  as  well  as  infectious 
admits  of  little,  if  any,  doubt." 

This  principle  applies  with  peculiar  force  in  this  case,  for  aside 
from  the  general  dread  of  the  disease,  as  found  by  the  court,  it  is 


304  REPAEATTON    AND    PBEVENTION    OF    TORTS.  (Part    1 

also  shown  that  the  security  of  the  pul)Hc  depends  upon  proper  pre- 
cautions and  sanitation,  which  may  at  any  time  be  relaxed  by  incautious 
nurses  or  careless  or  ignorant  patients. 

Furthermore,  the  court  found  that  the  bacilli  of  the  disease  may  be 
carried  by  house  flies,  Thus,  every  house  fly  that  drones  a  summer 
afternon  in  the  drawing  room  or  nursery  is  a  constant  reminder  to 
plaintiffs  of  their  neighbor,  tending  to  disquiet  the  mind  and  render  the 
enjoyment  of  their  home  uncomfortable. 

The  only  case  we  find  holding  that  fear  alone  will  not  support  a 
decree  in  this  class  of  cases  is  Anonymous,  3  Atk.  750,  where  Lord 
Hardwicke  said:  "And  the  fears  of  mankind,  though  they  may  be 
reasonable  ones,  will  not  create  a  nuisance."  Our  statute  modifies,  if 
indeed  it  was  not  designed  to  change  this  rule.  Under  the  facts,  we 
cannot  say  that  the  dread  which  is  the  disquieting  element  upon  which 
plaintiffs'  complaint  is  made  to  rest,  is  unreal,  imaginary,  or  fanciful. 
In  so  doing,  we  are  not  violating  the  settled  principles  of  the  law,  but 
affirming  them.  We  conceive  the  case  of  Stotler  v.  Rochelle  (Kan.), 
109  Pac.  788,  to  be  directly  in  point.  There  we  find  the  same  conten- 
tions made  as  here.  The  question  was,  whether  the  fear  of  cancer  was 
sustained  in  the  light  of  medical  authority.     The  court  said : 

"In  the  present  state  of  accurate  knowledge  on  the  subject  it  is 
quite  within  bounds  to  say  that,  whether  or  not  there  is  actual  danger 
of  the  transmission  of  the  disease  under  the  conditions  stated,  the 
fear  of  it  is  not  entirely  unreasonable." 

The  unusual  feature  of  that  case,  in  that  judicial  notice  is  taken  of 
the  fact  that  fear  may  be  urged  as  a  ground  for  injunctive  relief, 
challenged  the  interest  of  the  Hon.  John  D.  Lawson,  the  learned 
editor  of  the  American  Law  Review.  He  takes  no  issue  with  the 
rule.    He  says: 

"A  hospital,  said  the  court,  is  not  a  nuisance  per  sc,  or  even  prima 
facie,  but  it  may  be  so  located  and  conducted  as  to  be  a  nuisance  to 
people  living  close  to  it.  The  question  was  not  whether  the  establish- 
ment of  the  hospital  would  place  the  occupants  of  the  adjacent  dwell- 
ings in  actual  danger  of  infection,  but  whether  they  would  have  reason- 
able ground  to  fear  such  a  result  and  whether,  in  view  of  the  general 
dread  inspired  by  the  disease,  the  reasonable  enjoyment  of  their  prop- 
erty would  not  be  materially  interfered  with  by  the  bringing  together 
of  a  considerable  number  of  cancer  patients  in  this  place.     However 


Ch.    3)  PUBLIC  NUISANCE.  305 

carefully  the  hospital  might  be  conducted,  and  however  worthy  the 
institution  might  be,  its  mere  presence,  which  would  necessarily  be 
manifested  in  various  ways,  would  make  the  neighborhood  less  desir- 
able for  residence  purposes,  not  to  the  oversensitive  alone,  but  to 
persons  of  normal  sensibilities.  The  court  concluded  that  upon  these 
considerations  the  injunction  was  rightfully  granted.  The  plaintiff 
as  the  owner  and  occupant  of  adjacent  property,  had  such  a  peculiar 
interest  in  the  relief  sought  as  to  tnable  him  to  maintain  the  action." 
Vol.  44,  American  Law  Review,  i\o.  5,  p.  759. 

In  the  case  of  Baltimore  v.  Fairfield  Imp.  Co.  87  Md.  352,  39  Atl. 
1081,  67  Am.  St.  344,  40  L.  R.  A.  494,  an  injunction  against  placing 
a  leper  in  a  residence  neighborhood  for  care  and  restraint  was  justi- 
fied upon  the  ground  that  the  disease  produced  a  terror  and  dread  in 
the  minds  of  the  ordinary  individual.     In  that  case,  the  court  said: 

"Leprosy  is  and  has  always  been,  universally  regarded  with  horror 
and  loathing.  .  .  .  The  horror  of  its  contagion  is  as  deep-seated 
today  as  it  was  more  than  two  thousand  years  ago  in  Palestine.  There 
are  modern  theories  and  opinions  of  medical  experts  that  the  conta- 
gion is  remote  and  by  no  means  dangerous ;  but  the  popular  belief  of 
its  perils  founded  on  the  Biblical  narrative,  on  the  stringent  provisions 
of  the  Mosaic  law  that  show  how  dreadful  were  its  ravages  and 
how  great  the  terror  which  it  excited,  and  an  almost  universal  senti- 
ment, the  result  of  a  common  concurrence  of  thought  for  centuries 
cannot  in  this  day  be  shaken  or  dispelled  by  mere  scientific  asseveration 
or  conjecture.  It  is  not,  in  this  case,  so  much  a  mere  academic  inquiry 
as  to  whether  the  disease  is  in  fact  highly  or  remotely  contagious ; 
but  the  question  is  whether,  viewed  as  it  is  by  the  people  generally,  its 
introduction  into  a  neighborhood  is  calculated  to  do  a  serious  injury 
to  the  property  of  the  plaintiff  there  located." 

In  Cherry  v.  Williams,  147  N.  C.  452,  61  S.  E.  267,  125  Am.  St.  566, 
a  temporary  restraining  order  was  granted  against  the  maintenance  of 
a  tuberculosis  hospital,  notwithstanding  evidence  was  introduced,  as  in 
this  case,  tending  to  show  that  the  establishment  of  such  a  hospital,  if 
properly  maintained  and  conducted,  would  not  be  a  menace  to  the 
health  of  the  community,  but  in  fact  a  benefit.  We  have  no  cases  in  this 
state  directly  in  point,  yet  a  case  not  without  bearing  is  that  of  Shepard 
v.  Seattle,  59  Wash.  363,  109  Pac.  1067.  Judge  Rudkin,  delivering 
the  opinion  of  the  court  said: 
1  Eq.— 20. 


306)  REPARATION    AND    PREVENTION    OF    TORTS.  (Part    1 

"The  presence  of  a  private  insane  asylum,  with  its  barred  windows, 
and  irresponsible  inmates,  would  annoy,  injure,  and  endanger  the 
comfort,  safety,  and  repose  of  any  person  of  average  sensibilities, 
if  located  within  two  hundred  feet  of  his  place  of  abode.  In  other 
words,  it  is  a  matter  of  common  knowledge  that  the  presence  of  such 
an  institution  in  a  residential  portion  of  a  city,  would  practically  destroy 
the  value  of  all  property  within  its  immediate  vicinity  for  residence 
purposes." 

We  therefore  conclude  that  the  lower  court  erred  in  denying  an  in- 
junction. The  case  is  remanded  with  instructions  to  enter  a  decree 
upon  the  finding  in  favor  of  appellant. 


COMMONWEALTH  v.  McGOVERN. 

(Court  of  Appeals  of  Kentucky,   1903,   116   Ky.   212,   75   S.   W.   261.) 

Opinion  of  the  court  by  Judge  Settle — Reversing. 

This  equitable  action  was  instituted  in  the  Jefiferson  circuit  court, 
common  pleas  division,  by  the  appellant,  the  Commonwealth  of  Ken- 
tucky, on  relation  of  the  Attorney  General,  against  the  appellees,  Terry 
McGovern  and  others,  to  prevent  the  holding  of  a  prize  fight  advertis- 
ed to  take  place  on  the  22nd  day  of  September,  1902,  in  the  Auditorium, 
a  large  theater  situated  in  the  city  of  Louisville.  Terry  McGovern 
and  Young  Corbett  were  to  be  the  combatants,  and  their  managers 
and  the  owners  of  the  Auditorium  were  made  parties  to  the  action.     .     . 

Is  the  use  of  land  or  a  building  for  the  maintenance  of  prize-fighting 
a  public  nuisance?  In  Wood  on  Nuisances  (3rd  Ed.),  section  68,  the 
author  says:  "A  public  exhibition  of  any  kind  that  tends  to  the  cor- 
ruption of  morals,  or  to  disturbance  of  the  peace  or  of  the  general 
good  order  or  welfare  of  society,  is  a  public  nuisance.  Under  this 
head  are  included  all  puppet  shows,  legerdemain,  and  obscene 
pictures,  and  all  exhibitions,  the  natural  tendency  of  which  is  to  pander 
to  vicious  tastes,  and  to  draw  together  the  vicious  and  dissolute  mem- 
bers of  society."  That  a  prize-fight  is  an  exhibition  of  the  character 
here  described,  and  consequently  a  public  nuisance,  there  can  be  no 
doubt;  and,  if  so,  the  use  of  a  theater  for  prize-fighting  is  such  a 
nuisance.     Therefore  the  Legislatures  of  many  of   the   States  have 


Cll.    3)  PUBLIC  NUISANCE.  307 

enacted  laws  for  their  suppression,  realizing,  no  doubt,  that  the 
remedies  afforded  by  the  general  laws  were  not  adequate  to  that  end ; 
and  the  courts  have  been  uniform  in  upholding  the  statutes  thus  en- 
acted. Thus,  in  Sullivan  v.  State,  67  Miss.  352,  7  South.  276,  the 
Supreme  Court  of  Mississippi  said :  "We  think,  however,  that  the 
evil  sought  to  be  protected  against  by  the  statute  is  the  debasing 
practice  of  fighting  in  public  places,  or  places  to  which  the  public,  or 
some  part  of  it,  is  admitted  as  spectators." 

Such  a  meeting  as  would  have  been  held  in  the  Auditorium,  in  Louis- 
ville, to  witness  the  prize-fight  between  McGovern  and  Corbett,  if 
that  fight  had  occurred,  would  doubtless  have  attracted  some  of  the 
better  and  law-abiding  class  of  citizens,  curious  to  see  such  a  spectacle 
as  a  prize-fight ;  but  for  every  such  reputable  citizen  thus  attending, 
there  would  have  been  present  a  dozen  gamblers,  confidence  men, 
bunco  steerers,  or  pickpockets,  gathered  from  all  parts  of  the  United 
States,  men  of  idle,  vicious  and  criminal  habits  and  practices,  whose 
business  is  to  prey  upon  the  public  in  some  form  or  other,  and  many 
of  them  would  remain  in  the  community  after  the  combat  to  ply  their 
nefarious  callings.  Such  an  assembly  could  easily  be  led  into  a  riot, 
or  other  unlawful  disturbance  of  the  public  peace.  In  addition  to  the 
evils  suggested,  there  would  be  the  contaminating  effect  of  such  a  meet- 
ing upon  the  youth  of  the  city  and  State,  which  might  prove  of  in- 
calculable injury  to  their  morals  and  future  welfare.  Such  a  gather- 
ing, too,  would  demand  increased  vigilance  in  the  protection  of  the 
property  of  the  city  and  its  inhabitants,  be  a  menace  to  good  order, 
and  disturb  the  peaceful  pursuits  and  happiness  of  citizens  who  would 
be  unwilling  to  patronize  such  an  enterprise. 

We  conclude,  therefore,  that  while  a  court  of  equity  may  not  grant 
an  injunction  against  the  principals  who  were  expected  to  engage  in 
the  fight  in  question,  nor  those  connected  with  them  as  managers, 
trainers,  etc.,  because  the  process  of  the  criminal  courts  and  the  powers 
of  conservators  of  the  peace  in  the  city  of  Louisville  are,  or  ought 
to  be,  adequate  to  the  prevention  of  the  prize-fight,  by  the  arrest  and 
prosecution  of  the  parties  concerned,  yet  it  was  proper  for  the  lower 
court  to  enjoin  the  owner,  proprietor  and  manager  of  the  Auditorium 
theater  from  permitting  the  holding  of  a  prize-fight  therein,  and  from 
allowing  therein  any  future  exhibitions  of  the  same  character,  upon 
the  ground  that  such  a  use  of  the  building  would  constitute  a  public 
nuisance,  dangerous  to  the  public  morals  and  safety.     We  think  this 


308  REPARATION    AND    PREVENTION    OF    TORTS.  (Paxt    1 

exercise  of  power  by  the  court  can  not  be  questioned,  not  because 
any  new  powers  were  conferred  upon  it  by  the  statute  against  prize- 
fio-htinsr,  but  because  such  jurisdiction  exists  in  courts  of  equity,  and 
has  practically  always  so  existed,  and,  further,  because  its  exercise 
was  required  in  this  instance  by  the  exigencies  of  the  case  and  the 
express  language  of  the  statute,  which  commanded  the  court  to  use 
all  the  power  with  which  he  was  vested,  to  the  end  that  the  nuisance 
might  be  suppressed. 

As  already  suggested,  not  the  least  of  the  evils  connected  with  the 
holding  of  the  prize-fight  would  be  the  presence  of  the  immense  crowds 
of  lawless  and  turbulent  men  from  all  quarters.  An  injunction 
against  the  use  of  the  building  advertised  as  the  place  of  the  fight 
would  go  far  toward  preventing  the  assembling  of  this  crowd,  and 
thereby  avert  incalculable  mischief,  which  could  not  well  be  averted 
by  the  criminal  courts,  or  their  ministerial  officers,  after  the  meeting 
of  the  audience  at  the  place  of  the  combat,  or  in  the  act  of  assembling; 
for,  although  every  person  who  attends  a  prize-fight  by  that  act 
violates  the  law,  it  would  be  impossible  for  the  officers  of  the  law  to 
arrest  any  considerable  number  of  them  under  such  circumstances. 

We  do  not  regard  this  case  as  analogous  to  that  of  Neaf  v.  Palmer, 
103  Ky.,  496,  20  R.,  176,  45  S.  W.,  506.  In  the  latter  case  the  action 
was  brought  by  several  property  owners  to  enjoin  the  maintenance 
of  a  bawdy  house  upon  the  property  of  another.  In  passing  upon  the 
questions  involved,  this  court  said,  in  part:  "It  is  not  alleged  that 
there  are  offensive  sights  or  sounds  about  the  obnoxious  premises,  but 
only  that  the  property  is  made  less  valuable  in  the  vicinity,  and  that 
the  moral  atmosphere  is  tainted  and  pestilential.  The  injury  is  wholly 
consequential.  It  seems  to  us,  under  these  circumstances,  criminal 
courts  had  best  be  left  to  enforce  the  criminal  laws.  They  are  con- 
fessedly adequate  for  the  purpose  of  suppressing  such  evils." 

There  was  nothing  in  the  case,  supra,  to  indicate  that  the  bawdy 
house  complained  of  could  not  be  suppressed  by  the  ordinary  methods 
appertaining  to  the  criminal  court,  and,  the  damages  resulting  to  the 
plaintiff's  property  from  the  existence  of  the  bawdy  house  being 
wholly  consequential  and  speculative,  it  would,  of  course,  have  been 
improper  in  that  case  to  employ  the  writ  of  injunction  in  aid  of  the 
mere  property  rights  of  the  individual.  But  in  the  case  at  bar  the 
complainant  is  the  State, — the  sovereign — which  is  seeking  by  a  writ 


(^h.    3)  PUBLIC  NUISANCE.  309 

of  injunction  to  prevent  a  great  evil,  affecting  the  people  of  the  city 
of  Louisville,  and  the  entire  State  as  well,  and  which  threatens  ir- 
reparable injury  to  the  public  morals  because  of  its  cruelty,  inhumanity, 
and  debasing  associations,  and  danger  to  the  public  safety  because  of 
its  bringing  together  the  lawless  and  turbulent  elements  of  society 
from  all  quarters.  Upon  such  a  state  of  facts,  and  with  the  commands 
of  the  statute  directing  him  to  employ  all  his  powers  to  avert  the 
threatened  evil,  it  was,  in  our  opinion,  no  stretch  of  authority  for  the 
chancellor  to  employ  the  aid  of  the  writ  of  injunction  in  such  an 
emergency,  to  the  extent,  at  least,  of  preventing  the  use  of  real  prop- 
erty for  the  holding  of  the  prize-fight.  Nor  do  we  think  that  the 
right  of  the  chancellor  to  so  employ  the  writ  of  injunction  in  this  case 
is  dependent  upon  the  fact  that  a  property  right  be  involved.  It  may 
be  justified  upon  the  higher  ground  that  the  morals  and  safety  of  the 
public  are  involved,  and  that  the  public  good  is  of  the  first  consider- 
ation.    ... 


GEORGIA  V.  TENNESSEE  COPPER  CO. 

(United  States  Supreme   Court,    190G,   206  U.   S.    230.) 

Holmes,  J.  This  is  a  bill  in  equity  filed  in  this  court  by  the 
State  of  Georgia,  in  pursuance  of  a  resolution  of  the  legislature  and 
by  direction  of  the  Governor  of  the  State,  to  enjoin  the  defendant 
Copper  Companies  from  discharging  noxious  gas  from  their  works 
in  Tennessee  over  the  plaintiff's  territory.  It  alleges  that  in  conse- 
quence of  such  a  discharge  a  wholesale  destruction  of  forests,  orchards 
and  crops  is  going  on,  and  other  injuries  are  done  and  threatened 
in  five  counties  of  the  State.  It  alleges  also  a  vain  application  to  the 
State  of  Tennessee  for  relief.  A  preliminary  injunction  was  denied, 
but,  as  there  was  ground  to  fear  that  great  and  irreparable  damage 
might  be  done,  an  early  day  was  fixed  for  the  final  hearing  and  the 
parties  were  given  leave,  if  so  minded,  to  try  the  case  on  affidavits. 
This  has  been  done  without  objection,  and,  although  the  method  would 
be  unsatisfactory  if  our  decision  turned  on  any  nice  question  of  fact, 
in  the  view  that  we  take,  we  think  it  unlikely  that  cither  party  has 
suffered  harm. 


310  REPAEATION    AN^    PEEVENTION    OF    TOETS.  (Part    1 

The  case  has  been  argued  largely  as  if  it  were  one  between  two  pri- 
vate parties ;  but  it  is  not.  The  very  elements  that  would  be  relied 
upon  in  a  suit  between  fellow-citizens  as  a  ground  for  equitable  relief 
are  wanting  here.  The  State  owns  very  little  of  the  territory  alleged 
to  be  affected,  and  the  damage  to  it  capable  of  estimate  in  money,  pos- 
sibly, at  least,  is  small.  This  is  a  suit  by  a  State  for  an  injury  to  it  in 
its  capacity  of  quasi-sovereign.  In  that  capacity  the  state  has  an  inter- 
est independent  of  and  behind  the  titles  of  its  citizens,  in  all  the  earth 
and  air  within  its  domain.  It  has  the  last  word  as  to  whether  its  moun- 
tains shall  be  stripped  of  their  forests  and  its  inhabitants  shall  breathe 
pure  air.  It  might  have  to  pay  individuals  before  it  could  utter  that 
word,  but  with  it  remains  the  final  power.  The  alleged  damage  to  the 
State  as  a  private  owner  is  merely  a  makeweight,  and  we  may  lay 
on  one  side  the  dispute  as  to  whether  the  destruction  of  forests  has 
led  to  the  gullying  of  its  roads. 

The  caution  with  which  demands  of  this  sort,  on  the  part  of  a  State, 
for  relief  from  injuries  analogous  to  torts,  must  be  examined,  is 
dwelt  upon  in  Missouri  v.  Illinois,  200  U.  S.  496,  520,  521.  But  it  is 
plain  that  some  demands  must  be  recognized,  if  the  grounds  alleged  are 
proved.  When  the  States  by  their  union  made  the  forcible  abatement 
of  outside  nuisance  impossible  to  each,  they  did  not  thereby  agree  to 
submit  to  whatever  might  be  done.  They  did  not  renounce  the  possi- 
bility of  making  reasonable  demands  on  the  ground  of  their  still  re- 
maining quasi-sovereign  interests;  and  the  alternative  to  force  is  a 
suit  in  this  court.     Missouri  v.  Illinois,  180  U.  S.  208,  241. 

Some  peculiarities  necessarily  mark  a  suit  of  this  kind.  If  the 
State  has  a  case  at  all,  it  is  somewhat  more  certainly  entitled  to 
specific  relief  than  a  private  party  might  be.  It  is  not  lightly  to  be 
required  to  give  up  quasi-sovereign  rights  for  pay ;  and,  apart  from  the 
difficulty  of  valuing  such  rights  in  money,  if  that  be  its  choice  it  may 
insist  that  an  infraction  of  them  shall  be  stopped.  The  States  by 
entering  the  Union  did*  not  sink  to  the  position  of  private  owners 
subject  to  one  system  of  private  law.  This  court  has  not  quite  the 
same  freedom  to  balance  the  harm  that  will  be  done  by  an  injunction 
against  that  of  which  plaintiff  complains,  that  it  would  have  in  de- 
ciding between  two  subjects  of  a  single  political  power.  Without  ex- 
cluding the  considerations  that  equity  always  takes  into  account,  we 
cannot  give  the  weight  that  was  given  them  in  argument  to  a  com- 
parison between  the  damage  threatened  to  the  plaintiff  and  the  calamity 


Cll.    3)  PUBLIC  NUISANCE.  311 

of  a  possible  stop  to  the  defendants'  business,  the  question  of  health, 
the  character  of  the  forests  as  a  first  or  second  growth,  the  com- 
mercial possibility  or  impossibility  of  reducing  the  fumes  to  sulphuric 
acid,  the  special  adaptation  of  the  business  to  the  place. 

It  is  a  fair  and  reasonable  demand  on  the  part  of  a  sovereign  that 
the  air  over  its  territory  should  not  be  polluted  on  a  great  scale  by 
sulphurous  acid  gas,  that  the  forests  on  its  mountains,  be  they  better 
or  worse,  and  whatever  domestic  destruction  they  have  suffered, 
should  not  be  further  destroyed  or  threatened  by  the  act  of  persons 
beyond  its  control,  that  the  crops  and  orchards  on  its  hills  should  not 
be  endangered  from  the  same  source.  If  any  such  demand  is  to  be 
enforced  this  must  be,  notwithstanding  the  hesitation  that  we  might 
feel  if  the  suit  were  between  private  parties,  and  the  doubt  whether 
for  the  injuries  which  they  might  be  suffering  to  their  property  they 
should  not  be  left  to  an  action  at  law. 

The  proof  requires  but  a  few  words.  It  is  not  denied  that  the  de- 
fendants generate  in  their  works  near  the  Georgia  line  large  quantities 
of  sulphur  dioxid  which  becomes  sulphurous  acid  by  its  mixture 
with  the  air.  It  hardly  is  denied  and  cannot  be  denied  with  success 
that  this  gas  often  is  carried  by  the  wind  great  distances  and  over 
great  tracts  of  Georgia  land.  On  the  evidence  the  pollution  of  the 
air  and  the  magnitude  of  that  pollution  are  not  open  to  dispute.  With- 
out any  attempt  to  go  into  details  immaterial  to  this  suit,  it  is  proper 
to  add  that  we  are  satisfied  by  a  preponderance  of  evidence  that  the 
sulphurous  fvmies  cause  and  threaten  damage  on  so  considerable  a 
scale  to  the  forests  and  vegetable  life,  if  not  to  health,  within  the 
plaintiff  State  as  to  make  out  a  case  within  the  requirements  of  Mis* 
souri  V.  Illinois,  200  U.  S.  496.  Whether  Georgia  by  insisting  upon 
this  claim  is  doing  more  harm  than  good  to  her  own  citizens  is  for 
her  to  determine.  The  possible  disaster  to  those  outside  the  State 
must  be  accepted  as  a  consequence  of  her  standing  upon  her  extreme 
rights. 

It  is  argued  that  the  State  has  been  guilty  of  laches.  We  deem 
it  unnecessary  to  consider  how  far  such  a  defense  would  be  avail- 
able in  a  suit  of  this  sort,  since,  in  our  opinion,  due  diligence  has 
been  shown.  'I'he  conditions  have  been  different  until  recent  years.  • 
After  the  evil  had  grown  greater  in  1904  the  State  brought  a  bill  in 
this  court.     'J'he  defendants,  however,  already   were  abandoning   the 


ol2l  KEPAEATION    AND    PREVENTION   OF   TOETS.  (Part    1 

old  method  of  roasting  ore  in  open  heaps  and  it  was  hoped  that  the 
change  would  stop  the  trouble.  They  were  ready  to  agree  not  to 
return  to  that  method,  and  upon  such  an  agreement  being  made  the 
bill  was  dismissed  without  prejudice.  But  the  plaintiff  now  finds,  or 
thinks  that  it  finds,  that  the  tall  chimneys  in  present  use  cause  the 
poisonous  gases  to  be  carried  to  greater  distances  than  ever  before 
and  that  the  evil  has  not  been  helped. 

If  the  State  of  Georgia  adheres  to  its  determination,  there  is  no 
alternative  to  issuing  an  injunction,  after  allowing  a  reasonable  time 
to  the  defendants  to  complete  the  structures  that  they  now  are  build- 
ing, and  the  efforts  that  they  are  making,  to  stop  the  fumes.  The 
plaintiff  may  submit  a  form  of  decree  on  the  coming  in  of  this  court 
in  October  next. 

Injunction  to  issue. 

Mr.  Justice  Harlan,  concurring.  The  State  of  Georgia,  is,  in  my 
opinion,  entitled  to  the  general  relief  sought  by  its  bill,  and,  therefore, 
I  concur  in  the  result.  With  some  things,  however,  contained  in  the 
opinion,  or  to  be  implied  from  its  language,  I  do  not  concur.  When 
the  Constitution  gave  this  court  original  jurisdiction  in  cases  "in  which 
a  State  shall  be  a  party,"  it  was  not  intended,  I  think,  to  authorize 
the  court  to  apply  in  its  behalf,  any  principle  or  rule  of  equity  that 
would  not  be  applied,  under  the  same  facts,  in  suits  wholly  between 
private  parties.  If  this  was  a  suit  between  private  parties,  and  if 
vmder  the  evidence,  a  court  of  equity  would  not  give  the  plaintiff  an 
injunction,  then  it  ought  not  to  grant  relief,  under  like  circumstances, 
to  the  plaintiff,  because  it  happens  to  be  a  State  possessing  some  pow- 
ers of  sovereignty.  Georgia  is  entitled  to  the  relief  sought,  not  be- 
cause it  is  a  State,  but  because  it  is  a  party  which  has  established 
its  right  to  such  relief  by  proof.  The  opinion,  if  I  do  not  mistake 
its  scope,  proceeds  largely  upon  the  ground  that  this  court,  sitting  in 
this  case  as  a  court  of  equity,  owes  some  special  duty  to  Georgia  as  a 
State,  although  it  is  a  party,  while  under  the  same  facts,  it  would 
not  owe  any  such  duty  to  the  plaintiff,  if  an  individual. 


oil.    3)  PUBLIC  NUISANCE.  313 


WESSON  V.  WASHBURN  IRON  CO. 

(Supreme   Court   of    ]\[assachusetts,    1866,    95    Mass.    95.) 

At  the  trial  in  this  court,  before  Colt,  J.,  the  plaintiff  introduced 
evidence  tending  to  show  that  she  had  an  estate  for  life  in  two  dwell- 
ing-houses adjacent  to  premises  used  and  occupied  by  the  defendants 
for  a  rolling  mill  for  the  manufacture  of  railroad  iron;  that  durinp- 
the  period  complained  of  great  quantities  of  smoke,  cinders  and  dust 
came  constantly  from  the  defendants'  works  into  said  houses,  to  an 
extent,  when  the  wind  was  east,  enough  to  suffocate  persons,  making 
the  houses  black  inside  and  out,  covering  the  bed  clothes  and  table- 
cloths with  dust,  and  making  the  houses  uncomfortable  and  unfit  for 
habitation;  that  the  defendants  kept  constantly  in  operation,  by  night 
and  day,  a  trip-hammer  capable  of  striking  a  blow  of  from  seventy- 
five  to  one  hundred  tons,  the  effect  of  which  was  to  jar  the  house 
so  as  to  cause  the  plastering  to  crack  and  fall  down  repeatedly,  so 
that  no  clock  could  run  in  one  of  the  houses;  that  one  of  the  houses 
had  formerly  been  used  as  a  tavern,  but  its  use  as  such  had  been 
discontinued  since  the  use  of  the  trip-hammer,  except  that  guests  were 
occasionally  received,  who,  after  going  to  bed,  had  frequently  come 
down  late  at  night  and  gone  to  another  hotel.     .     .     . 

The  plaintiff  requested  the  court  to  instruct  the  jury  that  if  her 
dwelling-house  was  injured  by  jarring  and  shaking,  and  rendered  unfit 
for  habitation  by  smoke,  cinders,  dust  and  gas  from  the  defendants' 
works,  it  was  no  defence  to  the  action  that  many  other  houses  in  the 
neighborhood  were  affected  in  a  similar  way.  But  the  judge  declined 
so  to  rule,  and  instructed  the  jury,  in  accordance  with  the  request  of 
the  defendants,  that  the  plaintiff  could  not  maintain  this  action  if  it 
appeared  that  the  damage  which  the  plaintiff  had  sustained  in  her 
estate  was  common  to  all  others  in  the  vicinity;  but  it  nuist  appear 
that  she  had  sustained  some  special  damage,  differing  in  kind  and  de- 
gree from  that  common  to  all  others  in  the  neighborhood.     ..." 

BiGiCLOW,  C.  J.  .  .  .  There  can  be  no  doubt  of  the  truth  of  the 
general  principle  stated  by  the  court,  that  a  nuisance  may  exist  which 
occasions  an  injury  to  an  individual,  for  which  an  action  cannot  be 
maintained  in  his  favor,  unless  he  can  show  some  special  damage  in 


314  EEPAEATION    AND    PEEVENTION   OF   TORTS.  (Part    1 

his  person  or  property,  differing  in  kind  and  degree  from  that  which 
is  sustained  hy  other  persons  who  are  subjected  to  inconvenience  and 
injury  from  the  same  cause.  The  difficulty  hes  in  the  apphcation  of 
this  principle.  The  true  limit,  as  we  understand  it,  within  which  its 
operation  is  allowed,  is  to  be  found  in  the  nature  of  the  nuisance  which 
is  the  subject  of  complaint.  If  the  right  invaded  or  impaired  is  a  com- 
mon and  public  one,  which  every  subject  of  the  state  may  exercise 
and  enjoy,  such  as  the  use  of  a  highway,  or  canal,  or  public  landing 
place,  or  a  common  watering  place  on  a  stream  or  pond  of  water,  in 
all  such  cases  a  mere  deprivation  or  obstruction  of  the  use  which  ex- 
cludes or  hinders  all  persons  alike  from  the  enjoyment  of  the  common 
right,  and  which  does  not  cause  any  special  or  peculiar  damage  to  any 
one,  furnishes  no  valid  cause  of  action  in  favor  of  an  individual,  al- 
though he  may  suffer  inconvenience  or  delay  greater  in  degree  than 
others  from  the  alleged  obstruction  or  hindrance.  The  private  injury, 
in  this  class  of  cases,  is  said  to  be  merged  in  the  common  nuisance  and 
injury  to  all  citizens,  and  the  right  is  to  be  vindicated  and  the  wrong 
punished  by  a  public  prosecution,  and  not  by  a  multiplicity  of  separate 
actions  in  favor  of  private  individuals.  Several  instances  of  the 
application  of  this  rule  are  to  be  found  in  our  own  reports.  Stetson 
V.  Faxon,  19  Pick.  147.  Thayer  v.  Boston,  19  Pick.  511,  514.  .  .  . 
But  it  will  be  found  that,  in  all  these  cases,  and  in  others  in  which  the 
same  principle  has  been  laid  down,  it  has  been  applied  to  that  class 
of  nuisances  which  have  caused  a  hindrance  or  obstruction  in  the  exer- 
cise of  a  right  which  is  common  to  every  person  in  the  community, 
and  that  it  has  never  been  extended  to  cases  where  the  alleged  wrong 
is  done  to  private  property,  or  the  health  of  individuals  is  injured, 
or  their  peace  or  comfort  in  their  dwellings  is  impaired  by  the  carry- 
ing on  offensive  trades  and  occupations  which  create  noisome  smells 
or  disturbing  noises,  or  cause  other  annoyances  and  injuries  to  persons 
and  property  in  the  vicinity,  however  numerous  or  extensive  may  be 
the  instances  of  discomfort,  inconvenience  and  injury  to  persons 
and  property  thereby  occasioned.  Where  a  public  right  or  privilege 
common  to  every  person  in  the  community  is  interrupted  or  interfered 
with,  a  nuisance  is  created  by  the  very  act  of  interruption  or  inter- 
ference, which  subjects  the  party  through  whose  agency  it  is  done  to 
a  public  prosecution,  although  no  actual  injury  or  damage  may  be 
thereby  caused  to  any  one.     If,  for  example,  a  public  way  is  obstruct- 


Cll.    3)  PUBLIC  NUISANCE.  315 

ed,  the  existence  of  the  obstruction  is  a  nuisance,  and  punishable  as 
such,  even  if  no  inconvenience  or  delay  to  public  travel  actually  takes 
place.  It  would  not  be  necessary,  in  a  prosecution  for  such  a  nuisance, 
to  show  that  any  one  had  been  delayed  or  turned  aside.  The  offense 
would  be  complete,  although  during  the  continuance  of  the  obstruction 
no  one  had  had  occasion  to  pass  over  the  way.  The  wrong  consists 
in  doing  an  act  inconsistent  with  and  in  derogation  of  the  public  or 
common  right.  It  is  in  cases  of  this  character  that  the  law  does  not 
permit  private  actions  to  be  maintained  on  proof  merely  of  a  dis- 
turbance in  the  enjoyment  of  the  common  right,  unless  special  damage 
is  also  shown,  distinct  not  only  in  degree  but  in  kind  from  that  which 
is  done  to  the  whole  public  by  the  nuisance. 

But  there  is  another  class  of  cases  in  which  the  essence  of  the  wrong 
consists  in  an  invasion  of  private  right,  and  in  which  the  public  offence 
is  committed,  not  merely  by  doing  an  act  which  causes  injury,  an- 
noyance and  discomfort  to  one  or  several  persons  who  may  come  with- 
in the  sphere  of  its  operation  or  influence,  but  by  doing  it  in  such  place 
and  in  such  manner  that  the  aggregation  of  private  injuries  becomes 
so  great  and  extensive  as  to  constitute  a  public  annoyance  and  incon- 
venience, and  a  wrong  against  the  community,  which  may  be  properly 
the  subject  of  a  pubhc  prosecution.  But  it  has  never  been  held,  so 
far  as  we  know,  that  in  cases  of  this  character  the  injury  to  private 
property,  or  to  the  health  and  comfort  of  individuals,  becomes  merged 
in  the  public  wrong,  so  as  to  take  away  from  the  persons  injured  the 
right  which  they  would  otherwise  have  to  maintain  actions  to  recover 
damages  which  each  may  have  sustained  in  his  person  or  estate  from 
the  wrongful  act. 

Now  would  such  a  doctrine  be  consistent  with  sound  principles 
Carried  out  practically,  it  would  deprive  persons  of  all  redress  for 
injury  to  property  or  health,  or  for  personal  annoyance  and  dis- 
comfort, in  all  cases  where  the  nuisance  was  so  general  and  exten- 
sive as  to  be  a  legitimate  subject  of  a  public  prosecution;  so  that 
in  effect  a  wrongdoer  would  escape  all  liability  to  make  indemnity 
for  private  injuries  by  carrying  on  an  offensive  trade  or  occupation 
in  such  place  and  manner  as  to  cause  injury  and  annoyance  to  a 
sufficient  number  of  persons  to  create  a  common  nuisance. 

The  real  distinction  would  seem  to  be  this:  that  when  the  wrongful 
act  is  of  itself  a  disturbance  or  obstruction  only  to  the  exercise  of  a 
common  and  public  right,  the  sole  remedy  is  by  public  prosecution, 


316  EEPAEATION    AND    PREVENTION   OF   TOPiTS.  (Part    1 

unless  special  damage  is  caused  to  individuals.  In  such  case  the  act 
of  itself  does  no  wrong  to  individuals  distinct  from  that  done  to  the 
whole  community.  But  when  the  alleged  nuisance  would  constitute  a 
private  wrong  by  injuring  property  or  health,  or  creating  personal 
inconvenience  and  annoyance,  for  which  an  action  might  be  main- 
tained in  favor  of  a  person  injured,  it  is  none  the  less  actionable  be- 
cause the  wrong  is  committed  in  a  manner  and  under  circumsstances 
which  would  render  the  guilty  party  liable  to  indictment  for  a  com- 
mon nuisance.     .     .     . 


SECTION  VII.  COMMON  LAW  COPYRIGHT— STATUTORY 

MONOPOLIES. 


HASKINS  V.  RYAN. 
(New  Jersey  Court  of  Chancery,  1906,  71  N.  J.  Eq.  575,  64  Atl.  436.) 

Stevens,  V.  C.  To  the  bill  in  this  case  a  general  demurrer  is 
pleaded.  The  bill  alleges,  in  substance,  that  during  the  years  1898  and 
1899,  1900  and  1901,  the  complainant  devoted  a  large  part  of  his  time 
to  the  study  of  industrial  conditions  connected  with  the  output  of 
pig  lead  in  the  United  States,  and  had  conceived  the  plan  of  uniting 
the  outstanding  lead  interests,  which  had  not  already  become  a  part 
of  the  National  Lead  Company,  into  one  company,  and  had  either 
procured  options  thereon  or  had  opened  negotiations  for  their  pur- 
chase ;  that  in  the  spring  of  1891  "he  had  crystallized  and  formulated 
a  complete  plan  for  the  combination  of  the  white  lead  industries  in 
the  United  States  not  already  in  the  National  Lead  Company;  that 
he  laid  such  plans  before  the  defendant,  a  capitalist ;  that  he  sought  his 
co-operation  and  aid,  and  himself  agreed  to  contribute,  if  necessary, 
as  much  as  $200,000  if  the  defendant  would  join  him  therein,  and  also 
contribute  enough  to  carry  the  enterprise  through." 

The  bill  alleges  further  that  defendant,  to  quote  from  the  bill,  "ex- 
pressed a  willingness  to  join  your  orator  therein,  provided  an  ex- 
amination of  the  plan  and  papers  by  the  attorneys,  and  experts  of  said 


Cll.    3)  COMMON   LA^^•    AND    STATUTORY  MONOPOLIES.  317 

Ryan  (the  defendant)  confirmed  the  "statements  of  your  orator  made 
to  him." 

The  bill  then  alleges  that  the  complainant  submitted  the  plan  to 
Ryan's  attorney,  and  was  subsequently  told  by  him  that  he  had  sub- 
mitted it  to  Ryan,  and  had  endorsed  it  "as  comprehensive,  feasible  and 
attractive;"  that  through  the  efforts  of  Ryan's  agents,  options  had 
been  obtained  upon  most,  if  not  all,  of  the  properties  upon  which  the 
complainant  had  options,  that  on  January  20th,  1903,  the  United 
Lead  Company  was  organized  as  a  corporation  under  the  laws  of  New 
Jersey,  and,  under  the  direction  and  control  of  Ryan,  proceeded  to 
acquire,  and  now  owns,  the  interests  in  nearly  all  the  companies, 
firms  and  individuals  named  in  complainant's  plan,  and  is  capitalized 
with  a  capital  stock  of  $15,000,000  and  has  issued  bonds  for  $17,000,- 
000;  that  in  the  formation  and  exploitation  of  this  company,  the  de- 
fendant, Ryan,  "has  made  an  enormous  profit,  the  amount  of  which  is 
unknown  to  complainant,"  and  that  a  combination  substantially  as 
planned  by  complainant  has  taken  place,  or  is  about  to  take  place, 
with  the  result  of  great  profits  to  said  Ryan. 

The  bill  then  charges  that  Ryan's  act  of  availing  himself  of  the 
information  complainant  has  collected  and  has  only  disclosed  to 
Ryan  "upon  the  agreement  and  understanding  on  the  part  of  the 
said  Ryan  that  he  would  join  your  orator  in  the  said. scheme  and 
share  with  him  in  the  profits  arising  therefrom  is  contrary  to  equity," 
but  I  do  not  understand  that  by  this  general  charge  it  is  intended  to 
allege  any  other  understanding  or  agreement  than  that  contained  in 
the  stating  part  of  the  bill,  viz.,  that  Ryan  had  expressed  a  willingness 
to  join  complainant  in  his  project,  provided  an  examination  of  it  by 
Ryan's  attorneys  and  experts  should  confirm  complainant's  state- 
ments. The  bill  asks  for  a  discovery  and  account  of  Ryan's  profits 
and  a  decree  that  complainant  is  entitled  to  a  share  of  them.  Ryan 
is  the  sole  defendant. 

It  is  perfectly  plain  thai  no  recovery  can  be  had  in  this  case  on  the 
basis  of  a  completed  agreement  broken  by  Ryan.  The  plan,  a  copy 
of  which  is  appended  to  the  bill,  contemplates  the  raising  of  $15,000,- 
000  for  the  purpose  of  acquiring  the  properties  of  the  various  con- 
cerns, twenty-two  in  niuiiber,  other  than  that  of  the  National  Lead 
Company.  The  raising  of  a  fund  with  which  to  purchase  these  prop- 
erties was  of  the  essence  of  the  plan,  but  complainant  had  not  bound 


3181  REPAKATIOlSr    AND    PEEVENTIOlSr  OF   TOETS.  (Part    1 

himself  to  contribute  any  definite  sum,  and  Ryan  had  not  bound  him- 
self to  contribute  anything.  Even  if,  without  direct  averment,  we 
should  infer  than  an  examination  of  the  plan  and  papers  had  been 
made  by  Ryan's  experts,  and  that  such  examination  confirmed  com- 
plainant's statements  to  Ryan,  nothing  more  is  shown  than  that  Ryan 
agreed  to  join  in  the  plan — that  is,  agreed  to  enter  into  a  definite  and 
explicit  agreement  on  the  subject.  But  nothing  is  better  settled  than 
that  equity  will  not  compel  the  specific  performance  of  an  agreement 
to  make  an  agreement.  Lane  v.  Calvary  Church,  59  N.  J.  Eq.  (14 
Dick.)  413;  affirmed  on  appeal. 

An  account  on  the  basis  of  a  completed  agreement  is  therefore  quite 
out  of  the  question. 

As  I  understand  the  complainant's  argument,  he  does  not  rest  his 
case  on  any  such  basis.  His  contention  is  this :  The  plan  is  my  prop- 
erty. The  defendant  has  appropriated  it  to  his  own  use.  I  claim  an 
account  of  the  profits  arising  from  its  appropriation. 

If  in  point  of  fact  the  plan  has  been  wrongfully  taken  or  appropriat- 
ed, the  remedy,  if  any,  would  appear  to  be  an  action  on  the  case  for 
damages,  the  amount  being  its  fair  value.  But  the  plaintiff  does  not, 
and  in  this  court  could  not,  demand  damages.  He  asks  for  a  discovery 
and  an  account  of  profits. 

The  fact  that  he  has  not  been  able  to  cite  any  precedent  for  the 
claim  he  makes  is  not,  of  itself,  conclusive  if  he  can  bring  himself 
within  the  principle  upon  which  an  account  is  given. 

The  complainant  has  undoubtedly  the  right  to  claim  protection  in 
this  court  for  his  manuscript.  It  would  seem  that,  without  any  refer- 
ence to  whether  the  plan  is  or  is  not  open  to  the  objection  that  it  seeks 
to  create  a  monoply  (Kerr,  Inj.  186;  Oliver  v.  Oliver,  11  C.  B.  (N.  S.) 
139),  he  would  have  the  right  to  restrain  its  publication  or  to  pre- 
vent its  use;  and  in  the  case  of  an  author  the  law  does  more  than 
protect  the  manuscript  regarded  as  a  material  thing  of  ink  and  paper. 
The  combination  of  words  of  which  it  is  composed  (whether  written 
down,  or  acted  or  sung  before  an  audience  admitted  on  payment  of  a 
fee)  is  also  protected,  and  publication  is  restrained  even  if  the  manu- 
script be  destroyed  and  an  attempt  be  made  to  reproduce  it  from  a 
copy  rightfully  in  the  possession  of  another,  or  even  from  memory. 
The  work  is  protected  indefinitely,  before  publication,  by  the  common 
law  (Aronson  v.  Baker,  43  N.  J.  Eq.   (16  Stew.)   366;  New  Jersey 


Cll.    3)  COMMON   LAW    AND    STATUTORY  MONOPOLIlCS.  319 

State  Dental  Association  v.  Dentacura  Company,  57  N.  J.  Eq.  (12 
Dick.)  594;  58  N.  J.  Eq.  (13  Dick.)  582),  and  for  a  limited  time,  after 
publication,  by  the  statutory  law  of  copywright.  The  law  has  never  at- 
tempted to  go  beyond  this  and  to  enjoin,  for  the  benefit  of  the  author, 
after  publication,  the  use  of  the  ideas  contained  in  his  work. 

In  the  case  of  secret  processes  of  manufacturing,  the  law  does,  to 
a  certain  extent,  enjoin  the  use  of  ideas.  It  would,  of  course,  on  the 
same  principle  on  which  it  afifords  protection  to  the  unpublished  manu- 
script in  the  hands  of  the  author,  enjoin  the  publication  or  exhibition 
of  the  paper  containing  the  formula ;  but  it  does  more.  In  enjoining 
the  use  of  the  formula  it  restrains  the  wTong-doer  from  putting  the 
idea  formulated  to  practical  account.  Stone  v.  Grasselli  Company, 
65  N.  J.  Eq.  (20  Dick.)  756.  The  protection  ends  when  the  secret 
becomes  known.  In  the  case  of  patent  rights  the  statute  goes  still 
further.  It  affords  protection  for  a  limited  period  to  a  certain  class  of 
ideas,  known  as  useful  inventions,  after  the  inventor  has  published 
them  to  the  world,  and  because  he  has  so  published  them.  The 
valuable  right  here  protected  is  not,  as  in  the  case  of  copyright,  the 
manuscript  or  writing  regarded  as  a  peculiar  combination  of  words 
or  figures,  but  the  idea  or  conception  to  which  those  words  or  figures 
give  rise,  so  far  as  that  idea  or  conception  may  admit  of  material 
embodiment.  If  the  idea  contained  in  the  patented  device  of  A  sug- 
gests to  the  mind  of  B  another  idea,  which  would  not  have  arisen  in 
the  mind  of  B  but  for  the  stimulus  of  the  prior  idea,  A  can  claim  no 
property  in  that,  and  yet  B  has  mentally  appropriated  A's  idea  and 
made  it  the  basis  of  his  own,  and  I  do  not  suppose  that  it  has  ever 
been  contended  that  the  entire  public  are  not  at  liberty  to  subject  A's 
idea  to  such  investigation  and  discussion  as  it  may  desire.  The  wrong 
does  not  commence  until  the  attempt  is  made  to  make  or  dispose  of 
its  material  embodiment. 

I  now  come  to  the  precise  question  here  involved.  It  is  this:  Has 
the  complainant  a  property  right  in  the  scheme  or  idea  to  be  found 
in  his  plan  as  contradistinguished  from  the  property  right  which  he 
has  in  his  manuscript,  regarded  as  a  combination  of  words  and  figures, 
a  thing  of  ink  and  paper? 

A  right  is  defined  to  be  that  interest  v\liich  a  person  actually  has 
in  any  subject  of  property,  entitling  him  to  hold  or  convey  it  at 
pleasure.     But  that  can  hardly  be  styled  property  over  which  there  is 


320'  EEPAEATION    AND    PEEVENTION   OF   TORTS.  (Part    1 

not  some  sort  of  dominion.    Now,  as  I  have  already  said,  the  combi- 
nation of  words  and  figures  contained  in  complainant's  plan  belongs 
to  him  absolutely.     Its  publication  or  reproduction  or  exhibition  in 
any  form  may  be  enjoined.    But  the  idea  contained  in  the  plan  differs 
from  the  ideas  to  which  I  have  already  called  attention  in  this  im- 
portant respect:  It  involves  the  voluntary  action  and  co-operation  of 
many  different  men.    When  I  say  voluntary  action,  I  mean  action  not 
restrained     by     contract,     for     the     allegation  that  complainant  had 
"options"  is  altogether  too  vague  to  warrant  an  inference  that  they  are 
still  subsisting,  or  that  complainant  had  the  means  of  availing  himself 
of  them  without  the  aid  of  outside  capital.     Besides,  the  allegation 
is  not  that  he  has  procured  options  on  all  the  properties  which  it  was 
proposed  to  combine,  but  that  he  either  had  options  on  them  or  had 
"opened   negotiations   for  their  purchase."     The   means   of   carrying 
out  the  plan;  of  giving  effect  to  the  idea  lay,  therefore,  beyond  his 
control.     It  was  an  idea  depending  for  its  realization  upon  the  con- 
curring minds  of  many  individuals,  each  of  them  unbound  by  contract 
and  free  to  act  as  he  chose.     Such  a  project  or  idea  can  scarcely  be 
called   property.      It   lacks    that    dominion — that    capability    of    being 
applied   by   its    originator   to   his    own   use — which    is   the    essential 
characteristic  of  property.     It  differs  fundamentally  from  the  secret 
process  of  patented  invention  which  is  capable  of  material  embodiment 
at  the  will  of  the  inventor  alone.     It  is  worthless  unless  others  agree 
to  give  it  life.     It  was,  as  far  as  complainant  was  concerned,  an  idea 
pure  and  simple.     Now,  it  has  never,  in  the  absence  of  contract  or 
statute,  been  held,  so  far  as  I  am  aware,  that  mere  ideas  are  capable . 
of  legal  ownership  and  protection.     Says  Lord  Brougham,  in  deliver- 
ing his  judgment  in  Jeffreys  v.  Boosey,  4  H.  L.  Cas.  965:  "Volat 
irrevocabile  verhum,  whether  borne  on  the  wings  of  the  wind  or  the 
press,  and  the  supposed  owner  instantly  loses  all  control  over  it.     .     , 
He  has  produced  the  thought  and  given  it  utterance,  and  eo  instanti 
it  escapes  his  grasp." 

Justice  Yates,  in  his  dissenting  opinion  in  the  great  case  of  Millar 
v.  Taylor,  4  Burr.  2303,  2366  (an  opinion  which  was  afterwards  con- 
curred in  by  the  house  of  lords),  said:  "Where  are  the  indicia  or  dis- 
tinguishing marks  of  ideas?  What  distinguishing  marks  can  a  man 
fix  upon  a  set  of  intellectual  ideas  so  as  to  call  himself  the  proprietor 
of  them  ?    They  have  no  earmarks  upon  them."    A  case  much  like  the 


oil.    3)  COMMOX   LAW    AXD    STATUTORY  MONOPOLIES.  321 

present  is  that  of  Bristol  v.  Equitable  Assurance  Society  of  New  York. 
5  N.  Y.  Sup  131 ;  132  N.  Y.  264.  Tliere  the  complainant  confidentially 
disclosed  to  the  president  of  a  life  insurance  company  a  system  of 
soliciting  life  insurance  devised  by  him.  It  was  alleged  that  the  com- 
pany, after  the  disclosure,  used  the  plan  without  complainant's  con- 
sent. On  demurrer,  it  was  held  that  the  plaintiff  could  not  recover  for 
the  alleged  use. 

I  am  therefore  of  opinion  that  complainant  has  no  property  right  in 
his  plan  regarded  as  an  idea.  Having  no  property  right  he  has  no 
right  to  an  account. 

But  if  a  court  of  equity  cannot  treat  complainant's  idea  as  property, 
it  is  also  incapable  of  giving  him  the  remedy  of  account  on  another 
ground.      The   charge   of   the  bill   is   that   Ryan   should   account   for 
complainant's  share  of  any  profits  reaped  by  him  from,  or  in  connec- 
tion with,  the  promotion  and  exploitation  of  the  United  Lead  Com- 
pany.    Now,  what  profits  could  the  defendant  reap  therefrom?     The 
suggestion  is  that  he  might  reap  the  profits  of  a  promoter.     A  pro- 
moter may  sometimes  get  shares  not  issued  for  money  or  property 
purchased.     Such  shares,  viewed   from   a   legal   standpoint,   are  not 
of  much  value.     But  he  may  also  get,  by  contract,  fully-paid  shares. 
It  is  presumably  of  such  shares  that  the  complainant  desires  an  ac- 
count.    Now,  on  what  basis  could  there  be  an  equitable  division  of 
such  shares?     The  complainant  charges  that  it  was  part  of  his  plan, 
personally,  to  contribute   up  to  $200,000  if  necessary.    He  has,  in  fact, 
contributed  nothing.     The  plan  contemplated  the  raising  of  $15,000,- 
000.     Ryan's  interest  in  the  company  would  depend  in  part  upon  the 
extent  to  which  he  had  himself  contributed,  in  part  upon  other  con- 
siderations having  no  relation  to  complainant.    This  being  so,  it  would 
seem  to  be  utterly  impossible,  on  any  recognized  basis  of  apportion- 
ment, to  take  from  Ryan  a  part  of  his  shares  and  give  them  to  com- 
plainant.     Complainant   no   doubt   expected   to   secure   shares,   partly 
in  return  for  the  money  to  be  put  in  by  him  and  for  the  services  to  be 
performed  by  him,  and  partly  for  the  prior  work  done  in  formulating 
the  scheme.     How   much  his  collaborators   in   the   undertaking,   had 
they  taken  him  in,  would  have  allowed  him   for  what  he  luid  done 
or  would  do  is  altogether  conjectual.     It  would  naturally  have  been 
a  matter  of  express  contract.     I  am  (iuile  unable  to  see  how  a  court  of 
equity  could  make  him  an  allowance  by  way  of  account  of  profits,  based 

1  Eq.— 21 


322'  REPAEATION    AND    PREVENTION    OF    TORTS.  (Part    1 

upon  a  condition  of  affairs  wholly  unanticipated  and  wholly  unprovided 
for.  Manifestly  the  only  way  of  compensating  him  on  any  rational 
basis  would  be  to  ascertain  what  his  plan  was  reasonably  worth,  and 
then  to  give  him  damages.  This,  of  course,  would  presuppose  a  prop- 
erty right  in  the  plan.  Conceding  such  right,  the  damages,  if  recover- 
able at  all,  would  be  recoverable  in  a  court  of  law  in  an  action  on  the 
case,  and  not  in  equity. 

I  think  the  complainant's  bill  should  be  dismissed. 


WHEATON  V.  PETERS. 

(United   States    Supreme   Court,    1834,    8    Peters    591.) 

McLean,  J.  .  .  .  "The  complainants  charge  that  the  defend- 
ants have  lately  published  and  sold,  or  caused  to  be  sold,  a  volume 
called  'Condensed  Reports  of  Cases  in  the  Supreme  Court  of  the 
United  States,'  containing  the  whole  series  of  the  decisions  of  the 
court  from  its  organization  to  the  commencement  of  Peter's  Reports 
at  January  term,  1827.  That  this  volume  contains,  without  any  material 
abbreviation  or  alteration,  all  the  reports  of  cases  in  the  said  first 
volume  of  Wheaton's  Reports,  and  that  the  publication  and  sale  there- 
of is  a  direct  violation  of  the  complainant's  rights,  and  an  injunction, 
etc.,  is  prayed.     .     .     . 

The  complainants  assert  their  right  on  two  grounds. 

First,  under  the  common  law. 

Secondly,  under  the  acts  of  congress. 

And  they  insist,  in  the  first  place,  that  an  author  was  entitled,  at 
common  law,  to  a  perpetual  property  in  the  copy  of  his  works,  and 
in  the  profits  of  their  publication;  and  to  recover  damages  for  its 
injury,  by  an  action  on  the  case,  and  to  the  protection  of  a  court  of 
equity.     .     .     . 

That  an  author,  at  cominon  law,  has  a  property  in  his  manuscript, 
and  may  obtain  redress  against  any  one  who  deprives  him  of  it,  or  by 
improperly  obtaining  a  copy,  endeavors  to  realize  a  profit  by  its  pub- 
Hcation,  cannot  be  doubted;  but  this  is  a  very  different  right  from 
that  which  asserts  a  perpetual  and  exclusive  property  in  the  future 
publication  of  the  work,  after  the  author  shall  have  published  it  to 
the  world. 


Cll.    3)  COMMOX    I^A.W    AXD    STATl^TORY  MONOPOLIES.  3:23 

The  argument  that  a  Hterary  man  is  as  much  entitled  to  the  prod- 
uct of  his  labor  as  anv  other  member  of  society,  cannot  be  con- 
troverted.  And  the  answer  is,  that  he  realizes  this  product  by  the 
transfer  of  his  manuscripts,  or  in  the  sale  of  his  works  when  first 
published. 

A  book  is  valuable  on  account  of  the  matter  it  contains,  the  ideas 
it  communicates,  the  instruction  or  entertainment  it  afifords.  Does 
the  author  hold  a  perpetual  property  in  these?  Is  there  an  implied 
contract  by  every  purchaser  of  his  book,  that  he  may  realize  what- 
ever instruction  or  entertainment  which  the  reading  of  it  shall  give, 
but  shall  not  write  out  or  print  its  contents? 

In  what  respect  does  the  right  of  an  author  dififer  from  that  of  an 
dividual  who  has  invented  a  most  useful  and  valuable  machine?  In 
the  production  of  this,  his  mind  has  been  as  intensely  engaged,  as 
long,  and,  perhaps,  as  usefully  to  the  public,  as  any  distinguished 
author  in  the  composition  of  his  book. 

The  result  of  their  labors  may  be  equally  benefical  to  society,  and 
in  their  respective  spheres  they  may  be  alike  distinguished  for  men- 
tal vigor.  Does  the  common  law  give  a  perpetual  right  to  the  author, 
and  withhold  it  from  the  inventor?  And  yet  it  has  never  been  pre- 
tended that  the  latter  could  hold,  by  the  common  law,  any  property 
in  his  invention,  after  he  shall  have  sold  it  publicly. 

It  would  seem,  therefore,  that  the  existence  of  a  principle  may  well 
be  doubted,  which  operates  so  unequally.  This  is  not  a  characteristic 
of  the  common  law.  It  is  said  to  be  founded  on  principles  of  justice, 
and  that  all  its  rules  must  conform  to  sound  reason. 

Does  not  the  man  who  imitates  the  machine  profit  as  much  by  the 
labor  of  another,  as  he  who  imitates  or  republishes  a  book?  Can  there 
be  a  difference  between  the  types  and  press  with  which  one  is  formed, 
and  the  instruments  used  in  the  construction  of  the  others  ? 

That  every  man  is  entitled  to  the  fruits  of  his  own  labor  must  be 
admitted ;  but  he  can  enjoy  them  only  except  by  statutory  pro- 
vision, under  the  rules  of  property,  which  regulate  society,  and 
which  define  the  rights  of  things  in  general. 

It  may  be  proper  to  remark  tliat  the  court  are  unanimously  of 
opinion  that  no  reporter  has  or  can  have  any  copyright  in  the  written 
opinions  delivered  by  this  court  ;  and  tlial  the  judges  thereof  cannot 
confer  on  any  reporter  any  such  right.     .     .     . 


o24f  'KEPAKATION    AND    PREVENTION   OF   TOETS.  (Part    1 


BETTS  V.  DE  VITRE. 

(In   Chancery,   1864,   34   L.   J.   Ch.    289.) 

In  this  case  a  bill  had  been  filed,  by  William  Betts,  against  "Wims- 
hurst's  Patent  Metal  Foil  and  Sheet  Metal  Company  (Limited)," 
and  the  directors  and  managers  of  the  company,  by  which  it  was  al- 
leged that  the  defendants  were  infringing  certain  letters  patent  that 
had  been  taken  out  by  the  plaintiiT,  and  that  by  reason  of  the  infringe- 
ment of  the  plaintiff's  letters  patent  the  plaintiff  had  sustained  and 
was  sustaining  a  great  loss  and  injury,  and  had  been  and  still  was 
thereby  deprived  of  large  gains  and  profits  which  he  would  otherwise 
have  made  and  obtained  by  working  his  patent.     .     .     . 

The  plaintiff  asked  for  damages  and  that  the  decree  should  direct 
an  account  of  all  profits  of  which  the  plaintiff  had  been  deprived  by 
reason  of  such  infringement  of  his  patent,  as  the  profits  made  by  the 
defendants  could  be  no  measure  of  the  damages  inflicted  on  the 
plaintiff.  The  plaintiff  had  not  been  in  the  habit  of  granting  licenses, 
but  had  worked  the  patent  himself.  His  Honour  desired  to  hear  the 
arguments  of  counsel  on  the  point ;  and  the  case  now  came  on  to 
be  heard  on  this  question.     .     .     . 

Wood,  V.  C.  I  confess  it  appears  to  me  that,  if  the  damages  are 
to  be  assessed,  it  would  be  proper  to  take  the  identical  course  that 
was  taken  in  Hills  v.  Evans,  for  this  reason,  that  damages  of  this 
description,  namely,  damages  for  the  infringement  of  a  patent  where 
there  has  been  no  license  granted  at  any  time  for  the  use  of  that 
patent,  can  only  be  ascertained  on  those  very  vague  and  guess-like 
data  which  it  appears  juries  have  been  obliged  to  act  upon  in  ascer- 
taining what  the  actual  loss  has  been  that  has  occurred  to  a  patentee 
by  the  user  by  some  wrong-doer  of  his  patent  right.  [His  Honour 
then  commented  at  some  length  on  the  practice  at  law  with  regard 
to  the  assessment  of  damages  in  patent  cases,  and  continued] — The 
difficulty,  one  sees,  must  be  very  great  where  there  are  no  licenses 
existing.  Where  there  are  licenses  existing,  the  difficulty  would  be 
next  to  nothing,  because  you  would  simply  ascertain  the  amount  sold, 
and  fix  the  wrongdoer  with  that  amount. 


Ch.    3)  COMMOX   LAW    AXD    STATUTORY  MONOPOLIES.  325' 

As  regards  the  jurisdiction  of  the  court,  I  do  not  entertain  any  doubt 
that,  since  the  passing  of  the  act  of  1858,  the  court  has  jurisdiction; 
because  the  act  of  1858  was  passed  for  the  express  purpose  of  en- 
abHng   this   court    to    render   complete    justice,    without    sending   the 
parties  to  another  tribunal,   leaving  it   open,   however,   to   the   court 
either  to  take  the  course  of  assessing  damages,  or  to   leave  it  to  a 
court  of  law,  it  being  felt,  no  doubt,  that  in  many  cases  a  jury  would 
be  the  more  proper  tribunal.     Under  the  act   of    1862  it   is   equally 
proper  (if  one  may  say  so),  when  it  is  only  a  question  of  what  is  the 
legal  conclusion  to  be  come  to  upon  such  facts  as  may  be  before  the 
court  to  say  the  court  is  not  authorized  any  longer  to  avail  itself  of 
the  assistance  of  a  court  of  law,  but  is  bound  to  determine  all  the  points 
of  law,  because  the  court  is  competent  to  decide  such  points  without 
the  assistance  of  another  tribunal.     As  the  case  stood  before  the  act 
of  1858,  no  doubt  the  remedy  was  simply  that  which  Mr.   Rolt  has 
described.    You  obtained  an  injunction  and  an  account  of  profits,  and 
if  any  one  came  here  for  relief,  that  was  the  only  relief  given.     This 
court  never  granted  damages,  and  before  the  act  of  1858,  I  apprehend, 
could  never  grant  damages  in  respect  of  the  infringement  of  a  patent 
right.     After  the  passing  of  this  act  of   1858,  which  enacted  by  the 
2nd  section,  that  in  all  cases  seeking  for  an  injunction  against  the 
commission    or    continuance    of    any    wrongful    act,    the    court    may 
award  damages  to  the  party  injured,  either  in  addition  to  or  in  sub- 
stitution for  the  injunction.     The  exact  course  was  followed  by  the 
Lord  Chancellor,   in  a  case  of   obstruction  to   lights ;  and  though   it 
is  quite  true  that  in  the  case  of  interference  with  ancient  lights  there 
was  not  the  specific  remedy,  which  the  court  has  here  provided,  of 
taking  an  account  of  profits,  yet  when  you  find  that  the  legislature, 
in  1858,  has  said  that  in  all  these  cases  for  injunction  against  wrongful 
acts,  you  shall  have  the  power  of  granting  damages,  it  does  not  appear 
to  me  to  exclude  the  case  where  the  court  had  the  power  of  giving 
some  other  form  of  remedy  if  it  thought  fit.     Therefore  if   a  case 
came  before  me,  in  which  there  was  a  simple  and  plain  case,  namely, 
a  case  of  licenses  having  been  granted,  and  a  fixed  and  definite  royalty, 
so  that  the  accounts  would  be  a  matter  of  the   utmost  simplicity,   I 
should  feel  that  the  court  was  doing  that  which  was  plainly  not  within 
the  view  of  the  statute  if  it  sent  the  parties  to  law  to  ascertain  that 
which  it  had  the  means  in   its  own  hands  of  ascertaining  under  the 


32G  EEPAEATION    AND    PREVENTION   OF   TOETS.  (Part    1 

2nd  section  of  the  act.  But  in  this  case,  I  see  the  greatest  imaginable 
difficulty  in  arriving  at  these  damages.  Mr.  Betts  is  content  to  leave 
it  to  the  court  to  say  what  the  principle  should  be  on  which  the  court 
should  proceed;  but  I  have  not  heard  that  the  defendants  are  willing 
to  do  anything  of  the  kind,  and  one  sees  the  extreme  difficulty  that 
might  arise  in  a  case  of  this  kind,  and  the  best  way  of  pointing  out 
that  difficulty  is,  that  the  cases  are  extremely  few,  even  at  law,  of 
ascertaining  damages ;  the  case  has  been  generally  a  trial  of  the  patent 
right,  and  when  that  has  been  determined  the  parties  have  settled 
the  matter  as  they  best  could. 

I  think  the  proper  course  is  to  give  the  plaintiff  an  injunction,  with 
the  usual  account  of  profits,  and  if  he  chooses  to  waive  that  account, 
then  let  him  be  at  liberty  to  proceed  at  law  for  damages.  I  am  fol- 
lowing the  direct  precedent  of  the  Lord  Chancellor  in  Hills  v.  Evans, 
which  was  decided  after  the  passing  of  the  act,  and,  as  far  as  I  can 
see  on  the  same  ground,  namely,  the  extreme  difficulty  the  court  has 
in  seeing  its  way  to  assess  damages.     .     .     . 


CONTINENTAL  PAPER  BAG  CO.  v.  EASTERN  PAPER 

BAG  CO. 

(United  States  Circuit  Court  of  Appeals,  1906,  150  Fed.  741.) 

Lowell,  C.  J.  This  is  a  bill  in  equity  to  restrain  the  infringement 
of  letters  patent  No.  558,969,  issued  to  Liddell  for  an  improvement 
in  paper  bag  machines.     .     .     . 

The  machine  of  the  patent  in  suit  is  mechanically  operative,  as  was 
shown  experimentally  for  the  purposes  of  this  suit,  but  it  has  not 
been  put  into  commercial  use.  No  reason  for  the  nonuser  appears 
in  the  evidence,  so  far  as  we  can  discover.  The  defendant's  machine 
has  been  an  assured  commercial  success  for  some  years.  It  was  sug- 
gested at  the  oral  argument  that  an  unused  patent  is  not  entitled  to 
the  protection  given  by  the  extraordinary  remedy  of  an  injunction. 
This  contention  was  not  made  in  the  defendant's  printed  brief.  While 
this  question  has  not  been  directly  passed  upon,  so  far  as  we  are  in- 
formed, in  any  considered  decision  of  the  Supreme  Court,  yet  the 
weight  of  authority  is  in  favor  of  the  complainant.  Fuller  v.  Berger, 
120  Fed.  274,  56  C.  C.  A.  588,  65  L.  R.  A.  381.     .     .     . 


Cll.    3)  COMMON    LAW    AND   STATUTORY  MONOPOLIES.  327 

As  we  find  the  claims  in  suit  to  be  valid  and  to  have  been  infringed 
by  the  defendant,  the  complainant  is  entitled  to  an  injunction,  and  the 
decree  of  the  Circuit  Court  must  be  affirmed.     .     .     . 

A1.DRICH,  D.  J.  (dissenting).  I  agree  to  the  conclusion  that  the 
patent  in  suit  was  infringed,  but.  notwithstanding  infringement,  I 
contend  that  injunction  relief  should  not  be  granted  because  it  is  an 
infringement  of  a  paper  patent  deliberately  held  in  nonuse  for  a 
wrongful  purpose. 

The  injunction  is  not  asked  against  the  use  of  a  machine  which 
infringes  one  which  the  plaintiff  below  is  making  and  vending  under 
a  patent,  but  against  the  use  of  a  machine  which  infringes  a  patent 
under  which  the  plaintiff  is  not  making  and  vending,  and  one  which 
the  plaintiff  intends  to  withhold  from  the  public. 

The  manifest  purpose  is  to  withhold  the  infringed  device  from  com- 
mercial use  with  the  view  of  forcing  another  into  the  paper  bag  in- 
dustry; and  thus  the  concrete  question  is  whether  equity  by  injunction 
will  aid  such  a  purpose  with  respect  to  a  legal  right. 

There  is  no  pretense  in  this  case  that  equitable  aid  is  asked  to 
protect  from  infringement  the  patent  the  plaintiff  is  using  in  its 
business.  In  the  aspect  most  favorable  to  the  plaintiff,  the  relief 
sought  is  injunction  protection  to  a  business  or  an  industry  built  up 
in  using  a  particular  invention,  and  through  acquiring  and  holding 
in  deliberate  nonuse  a  competing  invention  by  way  of  protection. 

It  results,  therefore,  that  a  court  of  equity  is  asked  not  to  protect 
from  infringement  the  statutorily  intended  monopoly  of  the  right 
to  make,  use,  and  vend  under  a  particular  patent,  but  to  protect  a 
monopoly  beyond  and  broader  than  that,  a  monopoly  in  aid  of  the 
rightful  statutory  monopoly  of  the  patent  in  use.  The  proposition 
involves  the  idea  of  a  secondary  monopoly  maintained  to  stifle  patent 
competition  in  the  trades  and  industries,  and  thus  contemplates  a  con- 
dition which  at  once  contravenes  the  manifest  purpose  of  the  Con- 
stitution, and  a  monopoly  of  a  kind  and  breadth  and  for  a  purpose  in 
no  sense  ever  contemplated  by  the  statutory  contract  which  safeguards 
the  legal  right  to  make,  use,  and  vend  under  a  particular  patent. 

My  contention  is  not  that  an  individual  or  a  corporation  may  not 
buy  and  hold  competing  patents  and  control  them  in  a  strictly  legal 
sense,  and  recover  such  damages  at  law  for  infringement  as  the  rules 
of  law  accord  to  the  owner  for  the  invasion  of   such  a  legal  right, 


328;  REPAEATION    AND    PREVENTION    OF    TOETS.  (Part    1 

but  that  equity  should  not  by  the  arm  of  injunction  aid  the  owner 
in  a  purpose  to  control  and  suppress  invention  and  to  retard  intended 
benefits  which  in  the  ordinary  course  of  manufacture  and  trade,  un- 
influenced by  unconscionable  and  inequitable  control,  would  naturally 
flow  in  trade  and  commerce. 

The  legal  right  of  ownership  and  right  of  legal  control  of  patent 
rights  is  not  at  all  denied;  but  why  should  equity  through  injunction 
help  a  man  or  a  corporation  to  so  unreasonably  exercise  the  legal 
right  as  to  effectuate  the  withdrawal  of  patents  from  their  position 
in  the  field  of  utility,  to  the  end  that  a  single  and  perhaps  an  inferior 
right  or  monopoly  shall  be  exclusively  forced  into  business  and  upon 
the  public,  for  the  pecuniary  gain  of  private  ownership  at  the  ex- 
pense of  the  public?  The  primary  purpose  of  the  framers  of  the 
Constitution  was  not  unconscionable  private  pecuniary  gain,  but  to  en- 
courage invention  in  the  interests  of  general  business  and  of  the  public, 
and  the  act  of  Congress  which  followed  soon  after  was  to  protect  the 
right  to  make,  use,  and  vend,  under  a  given  patent,  thus  stimulating 
invention  in  the  public  interest,  and  there  was  no  thought  of  giving 
countenance  to  the  idea  of  acquiring  and  locking  up  inventions,  and 
improvements  upon  inventions,  to  the  end  that  the  general  benefits 
of  invention  should  be  turned  back;  and  the  idea  that  a  court  of 
equity  should  help  to  accomplish  such  a  result  is  contrary  to  the 
spirit  of  equity,  and  offends  public  policy. 

Equity  may  look  to  the  object  of  litigation  and  to  the  object  of 
the  relief  sought,  and  thus,  as  already  said,  it  is  found  that  the  primary 
and  substantial  object  of  the  litigation  here  is  not  to  protect  the 
paper  patent  in  suit,  which  is  locked  in  nonuse,  but  to  aid  the  patent 
monopoly  of  another  patent  which  is  not  in  suit,  one  which  is  in 
use,  but  not  infringed— all  to  the  real  and  manifest  end  that  patent 
competition  shall  be  stifled  and  destroyed,  and  that  the  business  pub- 
lic engaged  in  the  paper-bag  industry  shall  be  driven  to  the  use  of 
a  particular  patent  machine  not  covered  by  the  patent  in  litigation 
and  one  not  infringed. 

Simple  nonuse  is  one  thing.  Standing  alone,  nonuse  is  no  efficient 
reason  for  withholding  injunction.  There  are  many  reasons  for 
nonuse  which,  upon  explanation,  are  cogent,  but  when  acquiring, 
holding,  and  nonuse  are  only  explainable  upon  the  hypothesis  of  a 
purpose  to  abnormally  force  trade  into  unnatural  channels — a  hy- 
pothesis involving  an  attitude  wdiich  offends  public  policy,  the  con- 


ill.    3)  COMMON    L.\W    AND    STATUTORY  MONOPOLIES.  320 

science  of  equity,  and  the  very  spirit  and  intention  of  the  law  upon 
which  the  leijal  right  is  founded — it  is  quite  another  thing.  This  is 
an  aspect  which  has  not  been  considered  in  a  case  hke  the  one  here. 

One  may  suppress  his  own.  This  is  unquestionably  decided,  but 
when  the  suppression  is  for  a  wrongful  purpose  a  taint  is  created, 
and  a  court  of  ecpity  may  look  beyond  the  fictitious  issue,  in  respect 
to  protection  of  a  paper  patent  which  is  locked  up,  and  to  the  under- 
lying and  substantial  issue,  which  involves  the  question  whether  equity 
will  help  a  monopolistic  exclusion  of  a  beneficial  right  from  public 
use,  when  the  purpose  is  to  force  another  and  a  different  thing  upon 
the  pubhc,  under  conditions  which  at  once  overturn  the  whole  theory 
of  government  protection  of  patents  intended  to  stimulate  invention, 
to  the  end  that  the  benefits  of  discovery  shall,  under  reasonable  com- 
petitive patent  conditions,  flow  to  the  trades  and  industries. 

Extreme  illustrations  may  be  used  to  test  the  reasonableness  of  a 
legal  or  an  equitable  proposition.  If  it  is  legal  and  equitable  for  in- 
dividuals or  corporations  to  buy  and  suppress  one  patent  for  the 
purpose  of  forcing  another  into  trade  and  into  control  in  a  given 
industry,  they  may  upon  the  same  legal  and  equitable  logic  buy  and 
suppress  all,  together  with  the  public  interest,  and  it  is  when  the  real 
and  substantial  purpose  is  not  to  safeguard  a  particular  right,  but  to 
suppress  it  under  the  forms  of  law  and  to  arbitrarily  force  another, 
that  the  equitable  situation  changes. 

Under  the  Constitution  and  the  statute  in  aid  of  the  constitutional 
provision  with  reference  to  inventions  and  discoveries,  it  was  intended 
to  stimulate  art  and  invention  under  competitive  conditions  by  pro- 
tecting the  right  to  each  inventor,  or  each  owner  to  make  use,  and 
vend,  and,  if  equity  is  to  aid  in  stultifying  this  plain  intent  through 
affirmative  relief  by  injunction,  by  protecting  patent  aggregations  held 
in  deliberate  nonuse  for  the  purpose  of  excluding  all  patent  benefits 
except  such  as  the  holder  sees  fit  to  bestow,  it  will  help  to  overthrow 
tlic  intended  meritorious  patent  competition  under  normal  conditions 
in  trade,  and  will  help  to  deny  the  intended  benefits  to  the  public. 

In  the  case  at  bar  the  patent  in  suit  is  deliberately  suppressed.  There 
has  been  no  attempt  to  put  it  into  commercial  use.  It  relates  to  the 
very  important  and  far-reaching  paper  bag  industry.  The  only  ma- 
chine ever  made  under  the  patent  was  one  made  at  an  expense  of 
many  thousand  dollars  for  use  as  an  fxliibil  in  lliis  litigation.     ./    .     . 


330  KEPAEATION    AND    PREVENTION    OF    TOETS.  (Part    1 

Reasonable  considerations  of  wise  public  policy,  and  of  principles 
governing  equitable  jurisprudence,  require  that  equitable  aid,  through 
the  discretionary  arm  of  injunction,  should  be  withheld  from  one 
who  attempts  to  unreasonably  and  inequitably  oppress  the  general 
public,  and  to  so  use  a  naked  legal  right,  which  inheres  in  a  situation 
involving. a  government  purpose,  and  into  which  the  public  right  in 
a  sense  enters,  as  to  offend  and  wholly  reverse  the  plain  spirit  and 
policy  of  the  fundamental  law  upon  which  the  right  is  founded. 

Justification  of  noninjunction  intervention  under  such  circumstances 
invokes  no  novel  doctrine.  Noninterference  under  such  conditions 
is  based  upon  fundamental  and  substantial  grounds  of  justice  and 
equity.  Artificial  statutory  rights,  existing  in  deliberate  nonuse  for 
purposes  of  control  and  to  dominate  business,  with  the  legal  right 
aided  by  equitable  injunction,  would  at  once  become  a  thing  altogether 
intolerable  and  indefensible.     ... 


WALCOT  V.  WALKER. 

(In   Chancery,    1802,    7    Ves.    1.) 

The  bill  prayed  an  injunction  to  restrain  the  defendants,  who  were 
booksellers,  from  publishing  two  editions  of  the  plaintiff's  works; 
upon  a  dispute  as  to  the  construction  of  the  agreement  between  the 
parties. 

The  defendants  by  their  answer  admitted,  that  they  had  published  in 
one  of  these  editions  some  of  the  plaintiff's  works,  which  they  were 
not  authorized  to  publish.  As  to  that  edition,  therefore,  they  sub- 
mitted     .     .     . 

Lord  Chancellor  Eldon.  If  the  doctrine  of  Lord  Chief  Justice 
Eyre,  (Dr.  Priestley's  Case,  see  2  Mer.  473),  is  right,  and  I  think 
it  is,  that  publications  may  be  of  such  a  nature,  that  the  author  can 
maintain  no  action  at  law,  it  is  not  the  business  of  this  court,  even 
upon  the  submission  in  the  answer,  to  decree  either  an  injunction  or 
an  account  of  the  profits  of  works  of  such  a  nature,  that  the  author 
can  maintain  no  action  at  law  for  the  invasion  of  that,  which  he 
calls  his  property,  but  which  the  policy  of  the  law  will  not  permit 
him  to  consider  his  property.     It  is  no  answer,  that  the  defendants  are 


Cll.  3)       IXTERFEEEXCE  WITH  TRADE  INTERESTS.  331 

as  criminal.  It  is  the  duty  of  the  court  to  know,  whether  an  action 
at  law  would  lie ;  for,  if  not,  the  court  ought  not  to  give  an  account  of 
the  unhallowed  profits  of  libellous  publications.  At  present  I  am 
in  total  ignorance  of  the  nature  of  this  work,  and  whether  the  plain- 
tiff can  have  a  property  in  it  or  not.  As  to  one  of  these  editions, 
it  is  not  possible  to  grant  the  injunction,  until  the  right  of  the  plain- 
tiff has  been  tried  in  an  action.  The  facts  may  alter  the  effect  of 
the  agreement  at  law ;  and  that  must  be  looked  to  as  to  the  right  in 
equity.  It  is  not  immaterial  also,  that  they  have  been  permitted  to 
publish  in  their  trade  for  six  years  together  without  an  action.  But, 
even  as  to  the  other  edition,  before  I  uphold  any  injunction,  I  will 
see  these  publications,  and  determine  upon  the  nature  of  them ;  whether 
there  is  question  enough  to  send  to  law  as  to  the  property  in  those 
copies ;  for,  if  not,  I  will  not  act  upon  the  submission  in  the  answer. 
If  upon  inspection  the  work  appears  innocent,  I  will  act  upon  that 
submission ;  if  criminal,  I  will  not  act  at  all ;  and  if  doubtful,  I  will 
send  that  question  to  law. 

Therefore  let  the  injunction  be  dissolved  as  to  the  octavo  edition; 
with  liberty  to  apply  for  an  injunction,  in  case  the  plaintiff  succeeds 
in  an  action.  As  to  the  duodecimo  edition,  dissolve  the  injunction, 
unless  in  a  week  they  bring  the  books  into  court. 


SECTION  VIII.  INTERFERENCE  WITH  TRADE  INTERESTS 

—FRAUD. 


TABOR  V.  HOFFMAN. 
(New  York  Court  of  Appeals,  1889,  118  N.  Y.  30,  23  N.  E.  12.) 

The  object  of  this  action  was  to  restrain  the  defendant  from  using 
certain  patterns  alleged  to  have  been  surreptitiously  copied  from 
patterns  belonging  to  the  plaintiff  that  had  not  been  made  public. 

The  trial  court  found  that  the  plaintiff,  having  invented  a  pump 
known  as  "Tabor's  Rotary  Pump,"  which  was  patented,  made  a 
complete  set  of  patterns  to  manufacture  the  same;  that  he  necessarily 
spent   much   time,   labor  and   money   in   making   and   perfecting   such 


332  EEPAEATION    AND    PEEVENTION   OF   TORTS.  (Part    1 

patterns,  Avhich  were  always  in  his  exclusive  possession;  that   from 
time  to  time  he  made  improvements  upon  the  pump  and  incorporated 
the  same  in  the  patterns,  which  were  never  thrown  on  the  market 
nor  given  to  the  public ;  that  one  Francis  Walz,  after  the  patents  had 
expired,   surreptitiously  made   for   the   defendant   a   duplicate   set   of 
said   patterns    from   measurements   taken    from    the    patterns    of    the 
plaintiff,  without  his  knowledge  or  consent  while  they   were  in  the 
possession  of  said  Walz  to  be  repaired;  that  before  the  commencement 
of  this  action  the  defendant,  with  knowledge  of  all  these  facts  and 
without  the  consent   of   the  plaintiff,   had  commenced  to   make   and 
since  then  has  made  pumps  from  said  patterns,  thus  obtained;  that 
the  phuntiff  has  established  a  large  and  profitable  trade  in  said  pumps 
which  "will  be  injured  and  the  plaintiff  damaged,  if  the  defendant  is 
permitted"  to  continue  to  manufacture    from   said  patterns.     .     .     . 
Vann,   J.     It   is   conceded  by   the   appellant  that,   independent   of 
copyright  or  letters  patent,  an  inventor  or  author,  has,  by  the  common 
law,    an    exclusive   property    in    his    invention    or    composition,    until 
by  publication  it  becomes  the  property  of  the  general  public.     This 
concession  seems  to  be  well  founded  and  to  be  sustained  by  authority. 
(Palmer  v.  DeWitt,  47  N.  Y.   532;  Potter  v.   McPherson  21   Hun, 
559;  Hammer  v.  Barnes,  26  How.  Pr.   174;  Kiernan  v.  M.  Q.  Tel. 
Co.  50  id.  194;  Woolsey  v.  Judd,  4  Duer,  379;  Peabody  v.  Norfolk, 
98  Mass.  452;  Salomon  v.  Hertz,  40  N.  J.  Eq.  Rep.  400;  Phillips  on 
Patents,  333-341;  Drone  on  Copyright,  97-139.) 

As  the  plaintiff  had  placed  the  perfected  pump  upon  the  market, 
without  obtaining  the  protection  of  the  patent  laws,  he  thereby  pub- 
lished that  invention  to  the  world  and  no  longer  had  any  exclusive 
property  therein.  (Rees  v.  Peltzer,  75  111.  475;  Clemens  v.  Balford, 
14  Fed.  Rep.  728;  Short's  Laws  of  Literature,  48). 

But  the  completed  pump  was  not  his  only  invention,  for  he  had 
also  discovered  means,  or  machines  in  the  form  of  patterns,  which 
greatly  aided,  if  they  were  not  indispensable,  in  the  manufacture  of 
the  pumps.  This  discovery  he  had  not  intentionally  published,  but 
had  kept  it  secret,  unless  by  disclosing  the  invention  of  the  pump,  he 
had  also  disclosed  the  invention  of  the  patterns  by  which  the  pump 
was  made.  The  precise  question,  therefore,  presented  by  this  ap- 
peal, as  it  appears  to  us,  is  whether  there  is  a  secret  in  the  patterns 
that  yet  remains  a  secret,  although  the  pump  has  been  given  to  the 


0  0.0 


Oh.  3)       INTERFEEEXCE  WITH  TRADE  INTERESTS.  O^'O 

world?  The  pump  consists  of  many  different  pieces,  the  most  of 
which  are  made  by  running  melted  brass  or  iron  in  a  mold.  The 
mold  is  formed  by  the  use  of  patterns  which  exceed  in  number  the 
separate  parts  of  the  pump,  as  some  of  them  are  divided  into  several 
sections.  The  dift'erent  pieces  out  of  which  the  pump  is  made  are 
not  of  the  same  size  as  the  corresponding  patterns,  owing  to  the 
shrinkage  of  the  metal  in  cooling.  In  constructing  patterns  it  is 
necessary  to  make  allowances,  not  only  for  the  shrinkage,  which  is 
greater  in  brass  than  in  iron,  but  also  for  the  expansion  of  the  com- 
pleted casting  under  different  conditions  of  heat  and  cold,  so  that 
the  different  parts  of  the  pump  will  properly  fit  together  and  adapt 
themselves  by  nicely  balanced  expansion  and  contraction  to  pumping 
either  hot  or  cold  liquids.  If  the  patterns  were  of  the  same  size  as  the 
corresponding  portions  of  the  pump,  the  castings  made  therefrom 
would  neither  fit  together,  nor  if  fitted,  work  properly  when  pumping 
fluids  varying  in  temperature.  The  size  of  the  patterns  cannot  be  dis- 
covered by  merely  using  the  different  sections  of  the  pump,  but  various 
changes  must  be  made  and  those  changes  can  only  be  ascertained  by 
a  series  of  experiments,  involving  the  expenditure  of  both  time  and 
money.  Are  not  the  size  and  shape  of  the  patterns,  therefore  a  secret 
which  the  plaintiff  has  not  published  and  in  which  he  still  has  ex- 
clusive property?  Can  it  be  truthfully  said  that  this  secret  can  be 
learned  from  the  pump  when  experiments  must  be  added  to  what 
can  be  learned  from  the  pump  before  a  pattern  of  the  proper  size 
can  be  made?  As  more  could  be  learned  by  measuring  the  patterns, 
than  could  be  learned  by  measuring  the  component  parts  of  the  pump, 
was  there  not  a  secret  that  belonged  to  the  discoverer,  until  he  aban- 
doned it  by  publication,  or  it  was  fairly  discovered  by  another? 

If  a  valuable  medicine,  not  protected  by  patent,  is  put  upon  the 
market,  anyone  may,  if  he  can  by  chemical  analysis  and  a  series  of 
experiments,  or  by  any  other  use  of  the  medicine  itself  aided  by  his 
own  resources  only,  discover  the  ingredients  and  their  proportions. 
If  he  thus  finds  out  the  secret  of  the  proprietor,  he  may  use  it  to 
any  extent  that  he  desires  without  danger  of  interference  by  the 
courts.  But,  because  this  discovery  may  be  possible  by  fair  means, 
it  would  not  justify  a  discovery  by  unfair  means,  such  as  the  bribery 
of  a  clerk,  who  in  course  of  his  employment  had  aided  in  compound- 
ing the  medicine,  and  had  thus  become   familiar   with  the   formula. 


334  REPARATION    AND    PREVENTION    OF    TORTS.  (Part    1 

The  courts  have  frequently  restrained  persons,  who  have  learned  a 
secret  formula  for  compounding  medicines,  beverages  and  the  like 
while  in  the  employment  of  the  proprietor,  from  using  it  themselves 
or  imparting  it  to  others  to  his  injury,  thus  in  effect  holding,  as  was 
said  by  the  learned  General  Term,  "That  the  sale  of  the  compounded 
article  to  the  world  was  not  a  publication  of  the  formula  or  device 
used  in  its  manufacture."  (Hammer  v.  Barnes,  supra;  Morison  v. 
Moat,  21  L.  J.  (N.  S.  248;  S.  C.  20  id.,  513;  Green  v.  Folgham,  1 
Sim.  &  Stu.  398;  Yovatt  v.  Winyard,  1  Jac.  &  Walk.  394;  Peabody 
V.  Norfolk,  supra;  Salomon  v.  Hertz,  supra;  Kerr  on  Injunctions, 
181;  High  on  Injunctions,  §  663). 

The  fact  that  one  secret  can  be  discovered  more  easily  than  an- 
other, does  not  affect  the  principle.  Even  if  resort  to  the  patterns  of 
the  plaintiff  was  more  of  a  convenience  than  a  necessity,  still  if 
there  was  a  secret,  it  belonged  to  him,  and  the  defendant  had  no  right 
to  obtain  it  by  unfair  means,  or  to  use  it  after  it  was  thus  obtained. 
We  think  that  the  patterns  were  a  secret  device  that  was  not  dis- 
closed by  the  publication  of  the  pump,  and  that  the  plaintiff  was  en- 
titled to  the  preventive  remedies  of  the  court.  While  the  defendant 
could  lawfully  copy  the  pump,  because  it  had  been  published  to  the 
world,  he  could  not  lawfully  copy  the  patterns  because  they  had  not 
been  published,  but  were  still,  in  every  sense,  the  property  of  the 
plaintiff,  but  also  the  discovery  which  they  embodied. 

The  judgment  should  be  affirmed,  with  costs. 

Folli;tt,  Ch.  J.  dissenting.  An  inventor  of  a  new  and  useful  im- 
provement has  a  right  to  its  exclusive  enjoyment,  which  right  he  may 
protect  by  a  patent  or  by  concealment.  The  plaintiff's  patent  had 
expired  and  all  of  the  parts  of  the  pump  represented  by  the  patterns 
had  been  for  a  long  time  on  sale  in  the  form  of  a  completed  pump. 
The  patent  on  the  original  invention  having  expired  and  the  plain- 
tiff having  voluntarily  made  the  subsequent  improvements  public 
by  selling  the  improved  article,  he  lost  his  right  to  their  exclusive  use. 
The  plaintiff's  counsel  concedes  this ;  but '  says  that  while  patterns 
could  be  made  from  the  several  parts  of  the  pump,  from  which  pumps 
like  those  made  and  sold  by  the  plaintiff  could  be  produced,  that  it 
was  more  difficult  to  make  patterns  from  sections  of  the  pump  than 
from  the  patterns.  This  was  so  found  by  the  court  and  cannot  be 
gainsaid.    The  invention  was  not  the  patterns  but  the  idea  represented 


Cb.  3)        IXTERFERENCE  WITH  TRADE  INTERESTS.  335 

by  them,  to  which  the  plaintiff  had  lost  his  exclusive  right.  Neither 
the  defendant  nor  the  man  who  made  the  patterns  sustained  any  re- 
lation by  contract  with  the  plaintitY.  They  were  neither  the  ser- 
vants nor  partners  of  the  plaintiff,  and  they  owed  him  no  duty  not 
owed  by  the  whole  world.  The  act,  at  most,  was  a  trespass  and  the 
plaintiff  made  no  case  for  equitable  relief.  It  is  neither  asserted  nor 
found  that  the  defendant  is  unable  to  respond  in  damages.  The 
cases  cited  to  sustain  the  judgment  arose  out  of  the  relation  of  master 
and  servant  or  between  partners,  and  in  all  of  them  the  idea  had  not 
been  disclosed  to  the  public,  but  had  been  kept  secret  by  the  in- 
ventor. 

The  judgment  should  be  reversed  and  a  new  trial  granted,   with 
costs  to  abide  the  event. 

All  concur  with  Vann,  J.,  except  Follett,   Ch.  J.,  dissenting,  and 
Bradley  and  Haight,  J.  J.,  not  sitting. 

Judgment  affirmed. 


REGIS  V.  JAYNES  &  CO. 

(Supreme  Court  of   Massachusetts,   1904,   185   Mass.   408,  460,   70   N.   E.  480.) 

Bill  in  equity  filed  June  12,  1903,  to  restrain  the  defendants  from 
using  the  word  "Rex,"  or  the  word  "Rexall"  alone  or  with  other  words 
in  connection  with  the  manufacture  and  sale  of  dyspepsia  tablets. 

Bradley,  J.  When  the  plaintiff,  Ellen  M.  Regis,  first  compounded 
her  preparation  in  the  form  of  pills  she  marked  on  the  boxes  in  which 
they  were  sold  the  word  "Rex,"  from  which  her  family  surname 
was  derived.  She  not  only  adopted  and  attached  it  as  the  distinctive 
feature  indicative  of  the  origin,  identity  and  proprietorship  of  her 
cure  for  dyspepsia,  but  filed  it  as  a  trade  mark  under  St.  1895,  c. 
462,  §  1.  No  evidence  appears  that  at  any  time  she  has  abandoned 
or  ceased  to  use  it,  but  the  contrary  is  true.  She  has  formed  a  partner- 
ship with  her  son,  and  from  small  sales  in  its  original  form  and  within 
a  circumscribed  territory  other  and  more  attractive  combinations 
have  been  made,  and  the  business  has  slowly  increased  in  value  and 
extended  into  larger  fields.  This  is  enough  in  the  present  case  to 
establish  an  exclusive  right  of  property  in  the  plaintilTs  lo  the  device 
or  name  used  in  their  business.     Burt  v.   Tucker,    178   Mass.   493, 


330  liEPAEATION    AND    PEEVENTION   OF   TORTS.  (Part    1 

Lawrence  Manuf.  Co.  v.  Tennessee  Mannf.  Co.  138  U.  S.  537. 

It  may  be  conceded  that  words  which  are  merely  descriptive  of 
the  style  and  quality  of  an  article  cannot  be  appropriated  and  used 
for  this  purpose  by  the  manufacturer  in  the  description  of  his  wares 
to  the  exclusion  of  a  similar  use  by  others ;  but  any  words  or  devices 
that  have  for  their  principal  object  to  make  plain  the  identity  of  the 
owner  wath  specific  goods  prepared  and  sold  by  him  are  not  so 
classed,  but  may  constitute  a  valid  trade  mark.  Lawrence  Manuf.  Co. 
v.  Lowell  Hosiery  Mills,  129  Mass.  325,  327;  Frank  v.  Sleeper,  150 
Mass.  583;  Samuels  v.  Spitzer,  177  Mass.  226;  Lawrence  Manuf. 
Co.  V.  Tennessee  Manuf.  Co.  ubi  supra;  Columbia  Mill  Co.  v.  Al- 
corn, 150  U.  S.  460. 

Although  the  subsequent  origin  of  the  mark  or  name  used  by  the 
defendants  on  their  cure  for  dyspepsia  is  not  stated,  it  is  found  that 
it  was  not  originally  intended  as  an  imitation  of  that  of  the  plaintiffs, 
but  may  be  considered  as  a  fanciful  term  invented  by  the  United  Drug 
Company,  and  which  was  used  to  denote  a  particular  proprietary  med- 
ical compound  put  up  and  sold  by  it  or  its  licensees. 

But  if  no  intention  to  wrongfully  injure  the  plaintiffs  is  mani- 
fested in  the  origin  of  "Rexall,"  this  does  not  constitute  a  defense 
where  priority  of  ownership  and  continuous  use  is  shown  of  the  de- 
vice or  mark  of  which  it  is  found  to  be  an  imitation,  and  buyers  are 
Hkely  from  the  resemblance  to  be  misled  and  purchase  the  defendants' 
cure  when  they  desire  to  buy  and  believe  they  are  getting  the  remedy 
made  by  the  plaintiffs.  Oilman  v.  Hunnewell  122  Mass.  139;  Burt 
V.  Tucker,  ubi  supra ;  North  Chesire  &  Manchester  Brewery  Co.  v. 
Manchester  Brewery  Co.  [1899]  A.  C.  83. 

A  mere  comparison  of  the  different  words,  devices  or  designs  which 
may  be  used  for  the  purpose  of  a  trade  mark  is  not  enough  to  make 
out  the  main  fact  to  be  proved,  but  the  plaintiffs  must  go  further  and 
establish  the  essential  proposition  on  which  a  case  like  this  depends, 
that  taking  all  the  circumstances,  the  form  of  manufacture,  names, 
labels,  shape  of  boxes  or  receptacles  in  which  they  are  sold,  there  ex- 
ists a  reasonable  probability  that  purchasers  using  ordinary  care  will 
be  deceived  by  the  similarity  of  names  and  led  into  mistaking  one  medi- 
cine for  the  other.    McLean  v.  Fleming,  96  U.  S.  245. 

Among  the  various  findings  and  rulings  made  by  the  master,  the 
only  one  now  material  is  that  in  which  he  decides  this  principal  issue 


oil,  3)       IXTEEFEREXCE  WITH  TRADE  IXTERESTS.  3'37 

of  fact,  and  to  which  the  single  exception  argued  by  the  defendants 
was  taken. 

An  examination  of  the  report  shows  that  the  remedies  are  com- 
pounded in  the  form  of  two  kinds  of  tablets,  to  be  taken  in  connection 
with  each  other,  and  in  this  respect  there  was  a  likeness  between  them, 
though  the  boxes  used  for  each  in  form  and  the  labels  attached  are 
so  dissimilar  that  persons  of  ordinary  intelligence,  if  no  further 
resemblance  was  found,  could  easily  distinguish  them,  yet  upon  the 
whole,  in  connection  with  the  similarity  of  names,  the  similitude  be- 
comes such  that  purchasers  not  familiar  with  the  exact  appearance 
of  each,  and  the  boxes  and  labels  with  which  they  are  sold,  and  exer- 
cising the  care  and  observation  of  the  average  buyer,  are  likely  to  mis- 
take the  defendants'  preparation  for  that  of  the  plaintiffs. 

This  finding  is  well  supported  by  the  evidence  and  subsidiary  findings 
stated  in  the  report,  and  under  our  rule  where  all  the  evidence  is  not 
reported,  therefore  bcomes  final  and  is  not  to  be  disturbed.  East  Ten- 
nessee Land  Co.  v.  Leeson,  183  Mass.  37,  38. 

But  the  master  further  determined  that  within  a  common  territorial 
area,  the  United  Drug  Company,  with  the  knowledge  and  consent  of 
the  defendants  who  are  represented  in  the  advertisements  as  sole 
agents  for  its  sale,  has  advertised,  while  the  defendants  to  a  very  limit- 
ed extent  have  sold,  this  medicine  as  a  specific  for  the  same  disease, 
but  it  did  not  affirmatively  appear  that  such  competition  in  trade  at  the 
time  the  bill  was  filed  had  led  to  any  actual  injury  to  the  business  of 
the  plaintiffs,  and  for  this  reason  he  declined  to  assess  damages. 
Presumably  their  prompt  action,  which  did  not  allow  sufficient  time 
to  pass  before  suit  to  ascertain  the  effect  on  their  trade,  had,  to  a  very 
large  degree,  forestalled  results  which  they  feared  might  follow  from, 
and  probably  would  have  been  caused  by,  the  unauthorized  acts  of  the 
defendants. 

If  at  common  law  an  action  for  damages  caused  to  a  manufacturer 
whose  goods  were  put  upon  the  market  under  a  trade  mark  and  had 
acquired  a  distinctive  value  and  reputation,  could  be  maintained  against 
another  trader  who  fraudulently  copies  and  places  on  the  goods  made 
by  him  a  similar  mark  or  label,  in  equity,  relief  can  be  graijted  not  only 
as  to  damages  already  suffered,  but  an  injunction  can  be  awarded 
restraining  such  unlawful  use  in  the  future.  Thomson  v.  Winchester, 
19  Pick.  214;  Marsh  v.  Billings,  7  Cush.  322,  332;  Lawrence  Manuf. 

1  Eq.— 22 


338'  REPARATION"    AND    PREVENTION    OF    TORTS.  (Part    1 

Co.  V.  Lowell  Hosiery  Mills,  iibi  supra;  Holbrook  v.  Nesbitt,  163  Mass, 
120. 

If  the  choice  of  the  trade  device  used  by  the  defendants  was  in- 
nocent and  not  copied  from  the  name  used  by  the  plaintiffs,  yet  it 
appears,  and  the  master  has  found,  that  after  notice  given  to  them 
that  their  continued  use  of  it  was  wrongful,  because  of  the  fact  that 
it  was  an  imitation  of  the  plaintiffs'  trade  mark,  they  still  allowed  their 
names  to  appear  in  the  same  form  of  advertisement,  and  continued  to 
sell  their  preparation  without  any  change  of  name,  shape  or  label. 
Such  conduct  of  itself  affords  strong  presumptive  evidence  of  fraud. 
Orr  V.  Johnston,  13  Ch.  D.  434.  And  their  acts  from  that  time  at 
least  must  be  considered  as  a  direct  and  intentional  infringement. 
New  England  Awl  &  Needle  Co.  v.  Marlborough  Awl  &  Needle  Co. 
168  Mass.  154;  American  Waltham  Watch  Co.  v.  United  States 
Watch  Co.  173  Mass.  85;  Flagg  Manuf.  Co.  v.  Holway,  178  Mass.  83; 
Viano  v.  Baccigalupo,  183  Mass.  160;  Upmann  v.  Forester,  24  Ch. 
D.  231 ;  Manhattan  Medicine  Co.  v.  Wood,  108  U.  S.  218. 

Although  the  master  has  decided  that  the  plaintiffs  have  not  yet 
suffered  any  monetary  loss,  equity  interferes  when  title  and  success- 
ful imitation  have  been  established  to  prevent  the  impairment  or  de- 
struction of  the  right  itself,  notwithstanding  it  may  also  be  found  that 
the  reputation  and  use  of  the  plaintiffs'  remedy  may  be  confined  to  a 
relatively  small  section  of  the  State  when  compared  with  the  field 
occupied  by  the  defendants,  and  probably  is  less  widely  known  and 
sold,  and  much  inferior  to  their  specific  in  popularity.  Such  a  disparity 
in  volume  of  trade,  or  in  reputation,  if  held  to  be  decisive  as  a  limita- 
tion of  the  extent  to  which  relief  should  be  granted,  affords  no  oppor- 
tunity ordinarily  for  the  organization  and  development  of  a  business, 
though  founded  on  a  valid  trade  mark,  where  from  a  small  and  feeble 
beginning,  if  not  subjected  to  unlawful  interference  by  rivals,  it  may 
become  a  large  and  profitable  enterprise,  which  the  owner  has  a  right 
to  foster  and  establish.  For  the  injury  suffered  in  such  a  case  is  the 
same  in  kind,  though  it  may  differ  in  degree.  Shaver  v.  Shaver,  54 
Iowa,  208,  210,  212. 

While  the  public  are  deceived  and  buy  the  spurious  production  in  the 
belief  that  the  imitation  is  the  original  article,  yet  the  jurisdiction  to 
award  an  injunction  may  well  rest  on  the  ground,  that  where  a  sub- 
stantial business  has  been  built  up,  the  output  of  which  has  become 


(Jll.  3)        IXTERFEREXCE  WITH  TRADE  INTERESTS.  339 

known  to  buyers  under  a  designated  device  or  name,  such  designation, 
when  lawfully  established,  whether  treated  technically  as  a  trade  mark 
or  trade  name,  is  property  in  the  same  sense  as  the  instrumentalities 
which  the  owner  uses  in  making  the  specific  thing  that  he  vends  in 
the  market  in  this  form.  So  that  the  proprietor  of  such  a  trade  pro- 
duct, if  another  without  authority  uses  similar  devices  intending  to 
represent  by  them  that  the  goods  are  identical,  is  entitled  to  pro- 
tection from  this  wrongful  and  fraudulent  appropriation  of  his  prop- 
erty. Weener  v.  Brayton,  152  Mass.  101;  Bradley  v.  Norton,  33 
Conn.  157;  McLean  v.  Fleming,  ubi  supra;  Hall  v.  Barrows,  32  L.  J. 
Ch.  (N.  S.)  548,  551 ;  Millington  v.  Fox,  3  Myl.  &  Cr.  338. 

As  the  plaintiffs  have  made  out  a  case,  they  are  entitled  to  an  in- 
junction to  prevent  and  restrain  further  interference  with  the  use  and 
enjoyment  of  their  property,  and  the  defendants'  exception  to  the 
master's    report  must  be  overruled  and  the  report  confirmed. 

Decree  for  the  plaintiffs  accordingly. 


WORLD'S  DISPENSARY  MEDICAL  ASSOCIATION  v. 

PIERCE. 

(New  York  Court  of  Appeals,  1911,  203  N.  Y.  419,  96  N.  E.  738.) 

CoLUN,  J.  The  action  is  to  restrain  unfair  competition  in  the  use 
of  trade  names. 

The  plaintiff  was  incorporated  in  1879  under  chapter  40  of  the 
Laws  of  1848  and  the  acts  amendatory  and  supplemental  thereto. 
The  amendatory  act,  chapter  838  of  the  Laws  of  1866,  authorized  an 
incorporation  "for  the  purpose  of  carrying  on  any  kind  of  manufac- 
turing, mining,  mechanical,  chemical,  agricultural,  horticultural,  medical 
or  curative  business."  The  object  for  which  the  plaintiff  was  incor- 
porated were  "the  manufacturing,  compounding  and  vending  of  medi- 
cines, consultation  and  operating  in  surgery,  consultation  and  prescrib- 
ing, furnishing  and  administering  medicines  and  other  curative  and 
hygenic  agents  for  invalids  and  furnishing  care,  attendants  and  home 
accommodations  for  the  same."  One  Ray  V.  Pierce,  a  physician,  trans- 
ferred to  the  plaintiff  upon  its  incorporation  his  business  of  manu- 
facturing and  selling  under  their  trade  names  proprietary   remedies 


340'  EEPAEATIOlSr    AND    PEEVENTION   OF   TORTS.  (Part    1 

and  conducting  a  private  hospital  and  medical  practice.     The  proprie- 
tary remedies  which  the  plaintiff  manufactures  and  sells  are  named 
"Dr.    Pierce's    Golden    Medical    Discovery,"    "Dr.    Pierce's    Favorite 
Prescription."  ''Dr.  Pierce's  Pleasant  Purgative  Pellets,"  "Dr.  Pierce's 
Compound  Extract  of  Smart  Weed  or  Water  Pepper,"  "Dr.  Pierce's 
Lotion  Tablets,"  "Dr.  Pierce's  Cough  Syrup,"  "Dr.  Pierce's  Ammonio 
Camphorated  Liniment,"  and  "Dr.  Pierce's  Medicated  Soap,"  which 
are  commonly  known  to  the  public  as  "Dr.  Pierce's  Remedies"  and  also 
as  "Pierce's  Remedies."     Ray  V.  Pierce  has  been  at  all  times  and  is 
now  the  president  and  a  director  of  the  plaintiff  and  devised  the  for- 
mula for  each  remedy.     The  lotion  tablets  are  sold  in  boxes,  having 
upon  their  tops  the  words  "Dr.  Pierce's  Purifying  and  Strengthening 
Lotion    Tablets,    World's    Dispensary    Medical    Association,    Props., 
Buffalo,    N.    Y.,"    and   elsewhere   the    words    "Dr.    Pierce's    Genuine 
Family   Medicines,"  together   with  a   facsimile   signature   of   Ray   V. 
Pierce,  to  wit:  "R.  V.  Pierce,  M.  D."     A  part  of  the  business  of  the 
plaintiff  has  been  and  is  carrying  on  the  hospital  and  medical  practice 
founded  by  Rav  V.   Pierce.     The  plaintiff's   remedies   have   become 
widely  and  favorably  known  and  have  an  extensive  sale  throughout 
the  United  States  and  elsewhere. 

The  defendant  since  some  time  after  1899  has  advertised  and  sold 
a  certain  proprietary  remedy  in  the  form  of  tablets  under  the  name 
of  "Dr.  Pierce's  Tansy,  Cotton  Root,  Pennyroyal  and  Apiol  Tablets," 
which  are  put  up  in  boxes  having  on  their  tops  the  words  "Dr.  Pierce's 
Empress  Brand  Tansy,  Cotton  Root,  Pennyroyal  and  Apiol  Tablets," 
and  elsewhere  the  words  "Dr.  Pierce's  Empress  Brand"  and  the  words 
"the  genuine  has  signature  on  box  R.  J.   Pierce,"  the  words  "R.  J. 
Pierce"  being  a  facsmile  signature.    He  is  selling  also  another  proprie- 
tary remedy  known  as  "Pierce's  Empress  Brand  Pennyroyal  Tablets" 
in  boxes  having  upon  their  tops  those   descriptive   words   and  else- 
where the  words  "The  Genuine  has  the  signature  on  box  R.  J.  Pierce," 
the  words  "R.  J.  Pierce"  being  a  facsimile  signature.     The  defendant 
is  not  a  licensed  physician,  nor  entitled  to  practice  as  such  under  the 
law  of  the  state.     The  trial  court  found  as  facts  that  the  use  by  de- 
fendant of  the  words  "Dr.  Pierce"  is  unlawful;  that  the  names  and 
labels  used  by  defendant  are  calculated  and  designed  to  cause  the  public 
to  believe  that  the  defendant's  remedies  are  manufactured  and  sold 
by  plaintiff,  and  confusion  between  the  business  and  remedies  of  the 


Cll.  3)       IXTEEFEREXCE  WITH  TRADE  INTERESTS.  34-1 

parties  will  be  created  by  their  continued  use;  and  as  conclusions  of 
law  that  the  defendant  in  using  the  names  designating  his  remedies 
is  unfairly  competing  with  the  plaintiff,  and  that  by  a  judgment  the 
defendant  be  forever  restrained  from  using  in  connection  with  his 
remedies  those  names  or  the  words  "Dr.  Pierce"  or  "Dr.  Pierce's,"  or 
any  name  which  includes  the  word  "Pierce"  or  "Pierce's"  in  such 
manner  as  to  be  calculated  or  designed  to  cause  the  purchasers  of  his 
remedies  to  believe  them  to  be  manufactured  or  sold  by  the  plaintiff, 
or  the  word  "Pierce"  or  "Pierce's"  in  connection  with  his  business  in 
such  manner  as  to  deceive  or  be  calculated  to  deceive  the  public  or  the 
customers  of  either  of  the  parties.  The  judgment  of  the  Special  Term 
was  unanimously  affirmed. 

The  principal  contention  of  the  defendant  is  that  the  plaintiff  can- 
not lawfully  practice  medicine  and  conduct  the  hospital  because  it 
is  a  stock  corporation  (See  People  v.  Woodbury  Dermatological  In- 
stitute, 192  N.  Y.  454),  and  that  the  judgment  protects  its  use  of  the 
trade  name  "Dr.  Pierce"  in  its  illegal  practice,  and,  therefore,  violates 
the  rule  that  a  plaintiff  who  does  not  come  into  a  court  of  equity  with 
clean  hands  is  refused  reHef.  (Prince  Manfg.  Co.  v.  Prince's  Metallic 
Paint  Co.,  135  N.  Y.  24;  N.  Y.  &  N.  J.  Lubricant  Co.  v.  Young,  77 
N.  J.  Eq.  321).  A  majority  of  the  court  do  not  think  it  necessary, 
under  the  findings  of  the  trial  court,  to  consider  and  decide  whether 
or  no  the  plaintiff'  is  violating  the  law  of  the  state  by  practicing  medi- 
cine and  conducting  the  hospital.  They  are  of  the  opinion  that  even 
if  it  should  be  held  that  it  is  violating  the  law  in  this  respect,  it  would 
not  thereby  be  debarred  from  protection,  otherwise  proper,  in  respect 
of  its  manufacture  and  sale  of  proprietary  remedies  which  are  entirely 
separate  from  and  in  no  manner  connected  with  the  practice  of  medi- 
cine.    ... 

Appellant's  contention  that  the  judgment  is  too  broad  and  drastic 
is  well  founded.  Its  restraint  of  the  defendant  from  the  use  in  any 
way  of  the  designations  "Dr.  Pierce"  or  "Dr.  Pierce's"  is  legal  and 
just,  because  he  is  not  a  licensed  physician  nor  entitled  to  practice 
under  the  law  of  tlie  state.  (Public  llcaUh  Law,  §§  161,  174.) 
The  defendant  has,  however,  the  right  to  use  his  own  name  in  his 
own  business.  It  is  a  general  ijrinciplf  of  law  that  one's  name  is  his 
property,  and  he  has  the  same  right  to  its  use  and  enjoyment  as  he 
has  to  that  of  any  other  species  of  property.     (Chas.  S.  lliggins  Co. 


0-4-2'  EEPAEATION    AND    PEEVENTION   OF   TOETS.  (Part    1 

V.  Higgins  Soap  Co.,  144  N.  Y.  462;  Brown  Chemical  Co.  v.  Meyer, 
139  U.  S.  540.)  It  is,  however,  also  a  general  principle  of  law  that 
no  man  has  the  right  to  sell  his  products  or  goods  as  those  of  another. 
He  may  not  through  unfairness,  artifice,  misrepresentation  or  fraud  in- 
jure the  business  of  another  or  induce  the  public  to  believe  his  product 
is  the  product  of  that  other.  The  law  protects  the  honest  dealer  in  the 
business  which  fairly  is  his,  and  the  public  from  deception  in  trade. 
In  this  case,  as  in  others  which  have  been  before  the  court,  these 
principles  must,  because  of  the  identity  in  the  surname  of  the  defendant 
and  the  trade  name  used  by  the  plaintiil  be  reconciled  and  amalga- 
mated. The  plaintiff  and  its  predecessor,  Dr.  Pierce,  solely  through 
a  long  period  prior  to  1899  associated  the  name  Pierce  with  the 
proprietary  remedies  sold  by  it  and  which  had  acquired  a  high  reputa- 
tion and  an  extensive  market.  The  name  designates  and  causes  the 
public  to  buy  the  remedies  with  which  it  is  associated  as  those  of  the 
plaintiff.  It  when  associated  with  the  defendant's  remedies  is  "calcu- 
lated and  designed  to  deceive  and  defraud  the  public,  and  the  buyers 
and  users  of  the  plaintiff's  proprietary  remedies  and  tablets."  The 
defendant  has  the  right  to  use  his  name.  The  plaintiff  has  the  right 
to  have  the  defendant  use  it  in  such  a  way  as  will  not  injure  his 
business  or  mislead  the  public.  When  there  is  such  a  conflict  of  rights, 
it  is  the  duty  of  the  court  so  to  regulate  the  use  of  his  name  by  the 
defendant  that,  due  protection  to  the  plaintiff  being  afforded,  there  will 
be  as  little  injury  to  him  as  possible.  Defendant  should  so  use  his 
name  in  connection  with  his  remedies  that  he  will  obviate  deception 
or  with  an  explanation  which  will  inform  or  be  a  notice  to  the  public 
that  those  remedies  are  not  those  of  plaintiff  (Herring-Hall-Marvin 
Safe  Co.  V.  Hall's  Safe  Company,  208  U.  S.  554;  Devlin  v.  Devlin, 
69  N.  Y.  212;  Meneely  v.  Meneely,  62  N.  Y.  427.) 

We  have  already  stated  that  the  defendant  cannot  use  his  name 
with  the  prefix  "Dr."  We  have  concluded  that  due  and  adequate 
protection  will  be  afforded  to  the  plaintiff  and  the  public  if  the  de- 
fendant is  enjoined  additionally  from  using  the  words  "Pierce"  or 
"Pierce's"  in  advertising,  describing,  designating,  labelling  or  selling 
his  proprietary  remedies  unless  said  words  be  immediately  preceded 
on  the  same  line  therewith  by  defendant's  first  or  proper  christian 
name  and  his  middle  name  or  the  initial  letter  thereof  in  letters  identi- 
cal in  size,  color,  style  of  type  and  conspicuousness  with  those  of  said 


oil.  3)       IXTERFEREXCE  WITH  TRADE  INTERESTS.  343 

word  SO  that  said  word  shall  not  appear  for  any  of  the  purposes  afore- 
said except  when  thus  conjoined  with  the  words  "Robert  J."  or 
"Robert"  followed  by  the  middle  name  of  the  defendant.     .     .     . 


ROUTH  V.  WEBSTER. 

(In  Chancery,  1847,  10  Beav.  561.) 

In  1846  a  joint-stock  company,  called  "The  Economic  Conveyance 
Company,"  was  established,  having  for  its  object  the  carrying  pas- 
sengers by  steamboat  and  omnibus  at  the  average  rate  of  Id.  a  mile. 
The  Defendants,  the  provisional  Directors,  had  published  prospectuses 
in  which  the  name  of  the  Plaintiff  was  used,  without  his  authority,  as 
a  trustee  of  the  Company.  They  also  paid  monies  into  the  Bankers 
of  the  Company  to  the  Plaintiff's  account  as  trustee. 

The  Plaintiff,  conceiving  that  he  might  be  subjected  to  responsibility 
by  the  unauthorized  use  of  his  name,  filed  his  bill  against  the  Direc- 
tors, and  now  moved  for  an  injunction  to  restrain  them  from  using 
his  name  in  connection  with  the  Company.     .     .     . 

The  Master  oe  the  Rolls. 

The  sort  of  opposition  made  to  the  application  to  prevent  the  un- 
authorized use  of  the  Plaintiff's  name  furnished  a  specimen  of  the 
anxiety  of  the  Defendants  to  avoid  unnecessary  litigation. 

I  think  that  the  Plaintiff'  is  entitled  to  the  injunction.  1  have  no 
doubt  that  the  Plaintiff  never  did  consent  to  be  a  trustee.  The  De- 
fendant Webster  might  have  thought  he  did;  if  he  did,  his  belief  rested 
upon  a  very  slight  foundation.  However,  the  name  of  Mr.  Routh, 
who  desired  to  have  nothing  to  do  with  this  concern,  has  been 
published  to  the  world  as  a  trustee:  his  name  was  also  used  at  the 
bankers;  and  though  he  may  not  be  subjected  to  the  duties  of  trustee, 
yet  it  is  plain  that  he  is  exposed  to  some  risk  by  the  unauthorized  act 
of  the  Defendants  in  using  his  name.  Money  was  placed  in  his  name 
at  the  bankers,  and  he  is  left  to  get  rid  of  his  responsibility  as  he  can. 

The  defendants  having  published  his  name  as  a  trustee,  some 
negotiation  took  place  for  giving  the  Plaintiff  an  indemnity,  and  which 
he  was  willing  to  accept  as  a  condition  for  his  not  applying  for  an  in- 
junction.    This  was  not  given,  and  lluii   the  matter  remained  as  it 


344  EEPAEATION    AND    PBEVENTION    OF    TORTS.  (Part    1 

was  before.  He  now  moves  for  an  injunction  to  prevent  the  De- 
fendants proceeding  in  the  same  course  for  the  future,  and  the  De- 
fendants' not  pretending  that  they  have  a  right  to  continue  the  use 
of  his  name,  and  disavowing  any  intention  of  doing  so,  nevertheless 
file  affidavits  in  opposition  to  the  application. 

I  am  of  opinion  that  the  Plaintiff  is  entitled  to  the  injunction;  and, 
if  it  subjects  the  Defendants  to  expense,  let  it  be  a  warning  to  them 
as  well  as  to  others  not  to  use  the  names  of  other  persons  without  their 
authority.  What !  Are  they  to  be  allowed  to  use  the  name  of  any 
person  they  please,  representing  him  as  responsible  in  their  specula- 
tions, and  to  involve  him  in  all  sorts  of  liabilities,  and  are  they  then  to 
be  allowed  to  escape  the  consequences  by  saying  they  have  done  it  by 
inadvertence?     Certainly  not. 

Is  not  the  Plaintiff  entitled  to  be  protected  against  a  repetition  of 
those  misrepresentations  which  have  already  been  made?  I  am 
willing  to  believe  the  statement  made  on  behalf  of  the  Defendants,  that 
they  do  not  intend  to  repeat  their  misrepresentations;  but  I  thmk 
the  Plaintiff  is  not  bound  to  rely  on  their  assurance,  and  that  he  is 
entitled  to  be  protected  by  the  order  and  injunction  of  this  court. 


SECTION  IX.  INTERFERENCE  WITH  CONTRACT  AND 
BUSINESS  RELATIONS 


AMERICAN  LAW  BOOK  CO.  v.  EDWARD. THOMPSON  CO. 

(Supreme  Court  of  New  York,  1903,  41  N.  Y.  Misc.  396,  84  N.  Y.  Supp.  225.) 

BiSCHO?!',  J.  By  preliminary  injunction  in  an  action  for  injunc- 
tive relief  the  plaintiff  seeks  to  restrain  the  defendant  from  making 
agreements  with  subscribers  to  the  plaintiff's  encyclopedia,  whereby 
the  defendant  undertakes  to  indemnify  these  subscribers  against  claims 
for  damages  for  their  breach  of  contract  in  declining  to  receive  and 
pay  for  the  plaintiff's  books,  and  from  conducting  and  defraying  the 
expenses  of  the  defense  to  any  action  brought  against  the  subscriber 


Cll.    3)  INTEKFEEEXCE  WITH  BUSINESS  KEIATIONS.  345 

by  the  plaintiff.  The  complaint  alleges  that  these  agreements  have 
been  systematically  offered  by  the  defendant  to  the  plaintiff's  sub- 
scribers for  the  purpose  of  causing  them  to  subscribe  to  the  defendant's 
encyclopedia,  and  to  repudiate  their  subscriptions  for  the  work  pub- 
lished by  the  plaintiff ;  and  the  allegations  further  disclose  the  making 
of  intentional  misrepresentations  by  the  defendant  to  these  subscribers 
as  to  the  relative  merits  of  the  encyclopedias  for  the  purpose  of  induc- 
ing the  breach  of  contract.  The  defendant  admits  the  making  of  the 
agreements  in  question,  but  asserts  that  the  plaintiff  has  no  remedy 
in  equity  upon  the  allegations  of  the  complaint,  the  contention  being 
that  the  plaintiff'  has  his  remedy  at  law  for  each  contract  broken,  that 
the  party  to  that  contract  has  the  right  to  break  it  and  pay  damages,  and 
that  what  the  party  can  do  another  person  may  ask  him  to  do  without 
restraint  by  injunction.  It  is  also  argued  that  the  cases  in  which  an 
injunction  has  been  granted  to  prevent  the  solicitation  of  a  breach  of 
contract  are  found  to  have  involved  only  contracts  for  personal  ser- 
vices, and  that  there  is  no  precedent  for  such  an  injunction  as  the 
plaintiff  seeks.  If  there  be  no  exact  precedent  for  this  injunction, 
none  is  needed.  The  complaint  avers,  and  the  affidavits  support  the 
averment,  that  the  defendant  is  engaged  in  an  attempt  to  obtain 
business  which  the  plaintiff  has  secured,  having  no  regard  to  fairness 
of  competition  but  with  resort  to  trick  and  device. 

Wiicther  the  subscribers  are  in  each  instance  actually  led  by  the 
defendant's  misrepresentations  to  break  the  particular  contracts  is 
not  important,  and  is  not  an  essential  averment  of  the  complaint. 
Intentional  false  statements,  made  with  a  view  to  obstruct  the 
plaintiff's  business  and  to  divert  it  to  the  defendant,  are  charged, 
and  the  solicitation  of  the  subscriber's  breach  of  contract  is  l)ut  a 
more  active  step  in  the  same  scheme  of  unfair  competition.  The  fraud- 
ulent intent,  followed  to  fruition  in  the  actual  inducement  of  person!- 
deahng  with  the  plaintiff  to  break  their  contracts  for  the  intended 
benefit  of  the  defendant  and  to  the  intended  injury  of  the  plaintiff,  is 
the  basis  of  the  defendant's  wrong;  a  wrong  which  our  system  of 
remedial  justice  recognizes  as  the  subject  ')f  relief.  Rice  v.  Manley, 
66  N.  Y.  82,  23  Am.  Rep.  30;  Rich  v.  R.  R.  Co.,  87  N.  Y.  390,  and, 
see,  Bowen  v.  1  lall.  6  Q.  B.  D.  333. 

That  an  action  for  damages  would  not  afford  an  adequate  remedy 
is  obvious.    The  loss  of  business  and  the  injury  to  business  reputation 


346  REPAEATION    AND    PEEVENTION    OF    TORTS.  (Part    1 

resulting  from  the  defendant's  act  of  obstruction,  and  from  the  con- 
sequent litigation  between  the  plaintiff  and  its  delinquent  subscribers, 
could  not  be  estimated  nor  proven  with  any  degree  of  certainty  for 
the  purpose  of  a  recovery;  nor  could  the  plaintiff  properly  estimate 
the  additional  burden  of  the  future  litigation  with  subscribers,  whose 
defense  would  (as  is  to  be  inferred  from  the  past)  be  conducted  by  the 
defendant  at  great  pains  and  expense,  bearing  no  relation  to  the  amount 
of  the  claim,  but  solely  in  the  interest  of  obstruction  and  for  advertis- 
ing purposes.  The  invasion  of  a  legal  right  being  apparent,  and  the 
inadequacy  of  relief  at  law  being  clear,  a  case  for  injunctive  relief  is 
made  out ;  and,  indeed,  direct  authority  for  an  injunction  upon  a  very 
similar  state  of  facts  is  not  wanting.  Stoddard  v.  Key,  62  How, 
Prac.  137.     ... 


HAMILTON  BROWN  SHOE  CO.  v.  SAXEY. 

(Supreme  Court  of  Missouri,   1895,   131   Mo.   212,   32   S.   W.   1106.) 

Per  Curiam  :  This  is  an  appeal  from  the  final  judgment  of  the 
circuit  court  of  the  city  of  St.  Louis,  on  a  demurrer  to  the  plaintiff's 
petition.     ... 

The  case  was  tried  before  the  Hon.  L.  B.  Valliant.  one  of  the 
judges  of  that  court,  who  on  sustaining  the  demurrer  delivered  the 
following  opinion : 

"The  amended  petition  states  in  substance  that  the  plaintiff  con- 
ducts a  large  shoe  manufactory  in  this  city  and  has  in  its  employ 
some  eight  or  nine  hundred  persons,  all  of  whom  are  earning  their 
living  in  plaintiff's  employment,  and  are  desirous  of  so  continuing; 
that  the  defendants,  except  two  of  them,  were  lately  in  plaintiff's 
employ  but  have  gone  out  of  the  same  on  a  strike  and  are  now,  with 
the  other  two  defendants,  engaged  in  an  attempt  to  force  the  other 
employees  of  plaintiff  to  quit  their  work  and  join  in  the  strike,  and 
that  to  accomplish  this  purpose  they  are  intimidating  them  with 
threats  of  personal  violence ;  that  among  the  plaintiff's  employees  who 
are  thus  threatened  are  about  three  hundred  women  and  girls  and  two 
or  three  hundred  other  young  persons ;  that  the  effect  of  all  this  on  the 


Cll.    3)  INTERFERENCE  WITH  BUSINESS  RELATIONS.  347 

plaintiff's  business  if  the  defendants  are  allowed  to  proceed  would  be 
to  inflict  incalculable  damage. 

"Upon  filing  this  amended  petition  and  the  plaintiff's  giving  bond, 
as  required  by  law,  a  temporary  injunction  issued  restraining  the  de- 
fendants from  attempting  to  force  the  plaintift''s  employees  to  leave 
their  work  by  intimidation  and  threats  of  violence,  or  from  assembling 
for  that  purpose  in  the  vicinity  of  plaintiff's  factory. 

"The  defendants  have  appeared  by  their  counsel  and,  by  their  de- 
murred filed,  admit  that  all  the  statements  of  the  amended  petition 
are  true ;  but  they  take  the  position  that  even  if  they  are  doing  the 
unlawful  acts  that  they  are  charged  with  doing,  still  this  court  has  no 
right  to  interfere  with  them,  because  they  say  that  what  they  are 
doing  is  a  crime  by  the  state  law  of  this  state,  and  that  for  the  com- 
mission of  a  crime  they  can  only  be  tried  by  a  jury  in  a  court  having 
criminal  jurisdiction. 

"It  will  be  observed  that  the  defendants  do  not  claim  to  have  the 
right  to  do  what  the  injunction  forbids  them  doing;  their  learned 
counsel  even  quotes  the  statute  to  show  that  it  is  a  crime  to  do  so; 
but  he  contends  that  the  constitution  of  the  United  States  and  the 
constitution  of  the  state  of  Missouri  guarantee  them  the  right  to  com- 
mit crime  with  only  this  limitation  to  wit :  that  they  shall  answer  for 
the  crime,  when  committed,  in  a  criminal  court,  before  a  jury;  and  that 
to  restrain  them  from  committing  crime  is  to  rob  them  of  their  consti- 
tutional right  of  trial  by  jury. 

"If  that  proposition  be  correct,  then  there  can  be  no  valid  statute 
to  prevent  crime.  But  that  position  is  contrary  to  all  reason.  The 
right  of  trial  by  jury  does  not  arise  until  the  party  is  accused  of  having 
already  committed  the  crime.  If  you  see  a  man  advancing  upon 
another  with  murderous  demeanor  and  a  deadly  weapon,  and  -you 
arrest  him,  disarm  him,  you  have  perhaps,  prevented  an  act  which 
would  have  brought  about  a  trial  by  jury,  but  can  you  be  said  to  have 
deprived  him  of  his  constitutional  right  of  trial  by  jury?  The  train  of 
thought  put  in  motion  by  tlie  argument  of  the  learned  counsel  for 
defendants  on  this  point  leads  only  to  this  end,  towit.  that  the  consti- 
tution guarantees  to  every  man  the  right  to  commit  crime  so  that  he 
may  enjoy  the  inestimable  right  to  trial  by  jury. 

"Passing  now  to  the  question  relating  to  the  particular  jurisdiction 
of  a  court  of  equity,  we  are  brought  to  face  the  proposition  that  a 


O.I 


48  EEPAEATION    AND    PEEVENTION    OF    TORTS.  (Part    1 

court  of  equity  has  no  criminal  jurisdiction,  and  will  not  interfere 
by  injunction  to  prevent  the  commission  of  a  crime.  These  two  prop- 
ositions are  firmly  established ;  and  as  to  the  first,  that  a  court  of  equity 
has  no  criminal  jurisdiction,  there  is  no  exception.  As  to  the  second, 
that  a  court  of  equity  will  not  interfere  by  injunction  to  prevent  the 
commission  of  a  crime,  that,  too,  is  perhaps  without  exception  when 
properly  interpreted;  but  it  is  sometimes  misinterpreted.  When  we 
say  that  a  court  of  equity  will  never  interfere  by  injunction  to  prevent 
the  commission  of  a  crime,  we  mean  that  it  will  not  do  so  simply  for 
the  purpose  of  preventing  a  violation  of  a  criminal  law.  But  when 
the  act  complained  of  threatens  an  irreparable  injury  to  the  property 
of  an  individual,  a  court  of  equity  will  interfere  to  prevent  that  in- 
jury, notwithstanding  the  act  may  also  be  a  violation  of  a  criminal 
law.  In  such  case  the  court  does  not  interfere  to  prevent  the  com- 
mission of  a  crime,  although  that  may  incidentally  result,  but  it  exerts 
its  force  to  protect  the  individual's  property  from  destruction,  and 
ignores  entirely  the  criminal  portion  of  the  act.  There  can  be  no 
doubt  of  the  jurisdiction  of  a  court  of  equity  in  such  a  case. 

''On  this  question  counsel  have  cited  cases  in  which  courts  of  equity 
have  been  denied  jurisdiction  to  enjoin  the  publication  of  a  libel,  and 
in  those  opinions  are  to  be  found  the  general  statement  of  the  propo- 
sition above  mentioned.  But  the  law  of  libel  is  peculiar,  and  those 
cases  turn  upon  that  peculiarity.  The  freedom  of  the  press  has  been 
so  jealously  guarded,  both  in  England  and  in  this  country,  that  our 
law  of  libel  is  like  no  other  law  on  the  books.  Our  constitution  pro- 
vides that  a  man  may  say,  write,  and  publish  "whatever  he  will,"  being 
answerable  only  for  the  "abuse  of  liberty."  Libel  is  the  only  act  in- 
jurious to  the  rights  of  another  which  a  man  can  not,  under  proper 
conditions,  be  restrained  from  committing;  and  that  is  so  because 
the  constitution  says  he  shall  be  allowed  to  do  it  and  answer  for  it 
afterwards. 

"Equity  will  not  interfere  when  there  is  an  adequate  remedy  at  law. 
But  what  remedy  does  the  law  afford  that  would  be  adequate  to  the 
plaintift''s  injury?  How  would  their  damages  be  estimated?  How 
compensated?  The  defendants'  learned  counsel  cites  us  to  the  criminal 
statute,  but  how  will  that  remedy  the  plaintiff's  injury?  A  criminal 
prosecution  does  not  propose  to  remedy  a  private  wrong.  And  even 
if  there  was  a  statute  giving  a  legal  remedy  to  plaintiff,  it  would  not 


Cb.    3)  IXTEBFEEEXCE  WITH  BUSINESS  RELATIONS.  349 

oust  the  equity  jurisdiction.  The  legal  remedy  that  closes  the  door 
of  a  court  of  equity  is  a  common-law  remedy.  Where  equity  had  juris- 
diction because  the  common  law  affords  no  adequate  remedy,  that 
jurisdiction  is  not  affected  by  a  statute  providing  a  legal  remedy.  What 
a  humiliating  thought  it  would  be  it  these  defendants  were  really  at- 
tempting to  do  what  the  amended  petition  charges,  and  what  their 
demurrer  confesses,  that  is,  to  destroy  the  business  of  these  plain- 
tiffs, and  to  force  the  eight  or  nine  hundred  men,  women,  boys,  and 
girls  who  are  earning  their  livings  in  the  plaintiff's  employ,  to  quit 
their  work  against  their  will,  and  yet  there  is  no  law  in  the  land  to 
protect  them ! 

"The  injunction  in  this  case  does  not  hinder  the  defendants  doing 
anything  that  they  claim  they  have  a  right  to  do.  They  are  free  men, 
and  have  a  right  to  quit  the  employ  of  plaintiffs  whenever  they  see 
fit  to  do  so,  and  no  one  can  prevent  them ;  and  whether  their  act  of 
quitting  is  wise  or  unwise,  just  or  unjust,  it  is  nobody's  business  but 
their  own.  And  they  have  a  right  to  use  fair  persuasion  to  induce 
others  to  join  them  in  their  quitting.  But  when  fair  persuasion  is 
exhausted  they  have  no  right  to  resort  to  force  or  threats  of  violence. 
The  law  will  protect  their  freedom  and  their  rights,  but  it  will  not 
permit  them  to  destroy  the  freedom  and  rights  of  others.  The  same 
law  which  guarantees  the  defendants  in  their  right  to  (^uit  the  em- 
ployment of  the  plaintiffs  at  their  own  will  and  pleasure  also  guarantees 
the  other  employees  the  right  to  remain  at  their  will  and  pleasure. 

"These  defendants  are  their  own  masters,  but  they  are  not  the 
masters  of  the  other  employees,  and  not  only  are  they  not  the  masters 
of  the  other  employees,  but  they  are  not  even  their  guardians. 

"There  is  a  maxim  of  our  law  to  the  effect  that  one  may  exercise 
his  own  right  as  he  pleases,  provided  that  he  does  not  thereby  pre- 
vent another  exercising  his  right  as  he  pleases.  The  maxim,  or  rule 
of  law,  comes  nearer  than  any  other  rule  in  our  law  to  the  golden  rule 
of  divine  authority:  'That  which  you  would  have  another  do  luito  you, 
do  you  even  so  unto  them.'  Whilst  the  strict  enforcement  of  the  golden 
rule  is  beyond  the  mandate  of  a  human  tribunal,  yet  courts  of  equity, 
by  injunction,  do  restrain  men  who  arc  so  disposed  from  so  exercising 
their  own  rights  as  to  destroy  the  rights  of  others. 

"The  demurrer  to  the  amended  petition  is  overruUd." 


350  REPARATION    AND    PREVENTION   OF    TORTS.  (Part    1 

The  law  applicable  to  the  case  is  so  clearly  stated  in  this  opinion  of 
the  learned  judge,  that  to  add  anything  to  it  would  be  a  work  of 
supererogation.  We  adopt  it  as  the  opinion  of  this  court  and  affirm 
the  judgment.    All  concur. 


LOHSE  PATENT  DOOR  CO.  v.  FUELLE. 

(Supreme  Court  of  Missouri,   1908,  215   Mo.   421,   114  S.   W.   997.) 

Woodson,  J.  This  suit  had  its  origin  in  the  circuit  court  of  the 
city  of  St.  Louis,  the  object  of  which  is  to  enjoin  the  defendants  from 
declaring  and  prosecuting  a  boycott  against  the  appellant  and  its 
business.     .     .     . 

In  brief,  the  petition  charges  defendants  and  those  with  whom 
they  are  affiliated  with  having  entered  into  a  conspiracy  or  an  un- 
lawful combination  to  injure  and  damage  plaintiff's  business  by  having 
coerced  and  intimidated  certain  contractors  and  builders  from  purchas- 
ing and  using  all  building  materials  manufactured  by  it  in  any  building 
to  be  constructed  by  them  by  prohibiting  their  members  from  working 
upon  all  buildings  in  which  plaintiff's  said  materials  were  being 
used.     .     .     . 

The  word  "boycott"  has  been  defined  by  many  courts,  in  different 
language,  but  all  agree  substantially  as  to  the  meaning  of  the  word. 
After  an  extensive  review  of  the  authorities,  the  Supreme  Court  of 
Minnesota,  in  the  recent  case  of  Gray  v.  Building  Trades  Council, 
91  Minn.  1.  c.  179,  defines  the  word  in  the  following  language:  "A 
boycott  may  be  defined  to  be  a  combination  of  several  persons  to 
cause  a  loss  to  a  third  person  by  causing  others  against  their  will 
to  withdraw  from  him  their  beneficial  business  intercourse  through 
threats  that,  unless  a  compliance  with  their  demands  be  made,  the  per- 
sons forming  the  combination  will  cause  loss  or  injury  to  him ;  or  an 
organization  formed  to  exclude  a  person  from  business  relations 
with  others  by  persuasion,  intimidation,  and  other  acts,  which  tend 
to  violence,  and  thereby  cause  him  through  fear  of  resulting  injury 
to  submit  to  dictation  in  the  management  of  his  affairs.  Such  acts 
constitute  a  conspiracy,  and  may  be  restrained  by  injunction." 

If  that  is  the  proper  definition  of  the  word  boycott,  then  the  petition 
clearly  charges  the  defendant  with  being  guilty  of  boycotting  plaintiff's 


Ch.    3)  INTERFERENCE  WITH  BUSINESS  RELATIONS.  351 

business,  for  the  reason,  as  before  stated,  the  petition  charged  the  de- 
fendants, with  having  formed  a  combination  to  injure  plaintitT's  busi- 
ness, by  having  caused  the  builders  of  the  city  of  St.  Louis,  against 
their  will,  to  withdraw  from  plaintiff  their  beneficial  business  inter- 
course through  threats  that  unless  a  compliance  with  their  demands 
be  made,  the  defendants  will  cause  a  strike  to  be  called  against  the 
said  business. 

All  the  authorities  hold  that  a  combination  to  injure  or  destroy 
the  trade,  business  or  occupation  of  another  by  threatening  or  produc- 
ing injury  to  the  trade,  business  or  occupation  of  those  who  have 
business  relations  with  him  is  an  unlawful  conspiracy,  regardless  of 
the  name  by  which  it  is  known,  and  may  be  restrained  by  injunc- 
tion.    .     .     . 

During  the  oral  argument  it  was  suggested  by  counsel  that  the 
case  of  Clothing  Co.  v.  Watson,  168  Mo.  146,  announced  views  not 
in  harmony  with  those  expressed  by  the  courts  in  the  cases  before 
cited.  We  do  not  so  understand  that  case.  By  a  careful  reading  of 
that  case  it  will  be  seen  that  the  question  there  discussed  was  whether 
or  not  under  the  Constitution  defendant  in  that  case  could  be  enjoined 
from  publishing  a  boycott,  and  it  was  there  held  that  he  could  not  be 
so  enjoined,  but  that  is  not  the  purpose  of  this  suit.  The  clear  object 
of  this  case  is  to  prohibit  the  defendants  from  continuing  the  boycott 
in  force  heretofore  declared  or  to  enjoin  the  defendants  from  declar- 
ing a  threatened  boycott  against  plaintiff's  business,  and  not  to  en- 
join its  pubhcation.  If  the  boycott  itself  is  enjoined,  there  would  be 
no  occasion  for  complaint  against  its  publication. 

Learned  counsel  for  defendants,  several  times,  during  the  course 
of  the  oral  argument  of  this  case,  asked  the  question:  If  a  single 
individual  may  lawfully  do  all  of  the  things  which  are  charged  against 
the  defendants,  then  why  may  not  two  or  more  persons  agree  to  do 
the  same  things  without  violating  the  law  ? 

The  answer  is  plain  and  simple.  Neither  the  individual  nor  two  or 
more  persons  can  lawfully  conspire  to  do  the  things  charged.  In  the 
first  place,  the  individual  cannot  do  the  things  charged  in  the  petition 
at  all,  either  legally  or  illegally,  for  the  reason  he  cannot  conspire  with 
himself  to  injure  plaintiff's  business  however  well  his  intention  may  be 
to  do  so ;  nor  can  he  intimidate  the  builders  from  using  materials  manu- 
factured by  plaintiff,  for  the  reason  he  has  no  associates  bound  to  him 


352  EEPAEATION    AND    PREVENTION   OF   TORTS.  (Part    1 

by  contract  or  otherwise  with  which  to  intimidate  them.  It  is  true, 
the  individual  might  make  up  his  mind  to  injure  plaintiiT's  business  and 
determine  in  his  own  mind  that  he  would  work  such  injuries  by 
threatening  to  no  longer  work  for  the  builders  and  contractors  if  they 
continued  to  use  materials  manufactured  by  the  plaintiff;  but  the 
practical  working  of  such  an  undertaking  by  an  individual  would  re- 
sult in  most,  if  not  in  all,  instances  in  such  a  small  loss  to  the  builders 
and  contractors  over  and  above  the  profit  they  would  probably  make 
by  continuing  to  deal  with  plaintiff,  that  the  threat  would  have  but 
little  or  no  intimidating  effect  upon  them,  and  in  no  manner  force 
them  from  doing  business  with  plaintiff.  Certainly  the  law  would  take 
no  notice  of  such  infinitesimal  loss  nor  such  slight  intimidation.  Lex 
non  curat  de  minimis. 

But  so  much  cannot  be  said  regarding  combinations  or  conspiracies 
formed  between  two  or  more  persons  to  injure  and  destroy  the  busi- 
ness of  a  person  by  means  of  a  boycott. 

The  books  are  full  of  cases  where  such  combinations  or  conspiracies 
have  wrought  great  injury  and  loss,  and  even  wrecked  and  destroyed 
great  and  powerful  business  institutions  and,  if  left  untrammeled, 
would  cause  the  strongest  of  them  to  fall,  and  the  very  foundation  of 
our  government  to  crumble. 

Such  combinations  are  differentiated  from  the  labor  organizations 
mentioned  in  paragraph  one  of  this  opinion  by  the  fact  that  they  are 
formed  for  the  direct  purpose  of  protecting  and  promoting  the  inter- 
ests of  the  laboring  classes,  which  only  indirectly  and  incidentally  oper- 
ate in  restraint  of  trade  ;  while  these  have  for  their  direct  object  the  im- 
mediate effect  to  injure  and  damage  the  business  of  the  persons  at 
whom  they  are  directed,  and  thereby  compel  them  to  discharge  the 
non-union  laborers,  and  thereby  indirectly  and  incidentally  protect  and 
benefit  the  parties  to  the  combination  or  conspiracy. 

All  of  the  authorities  permit  and  encourage  the  former  organizations 
in  carrying  out  their  laudable  purposes,  but  the  law  with  an  equally 
firm  hand  prohibits  all  combinations  and  conspiracies  which  are  form- 
ed for  the  purpose  of  working  injury  and  damage  to  the  business  of 

another. 

We  are,  therefore,  of  the  opinion  that  the  trial  court  erred  in  sus- 
taining the  demurrer  to  the  petition. 


Ch.    3)  INTERFEEEXCE  WITH  BUSINESS  RELATIONS.  353 

CORNELLIER  v.  HAVERHILL  SHOE  MFRS.  ASS'N. 

(Supreme  Court  of  Massachusetts,  1915,  221  Mass.  554,  109  N.  E.  643.) 

Bill  in  Equity,  filed  in  the  Supreme  Judicial  Court  on  January  25, 
1913,  against  certain  corporations  and  the  members  of  certain  partner- 
ships engaged  in  the  business  of  manufacturing  shoes  in  Haverhill, 
to  enjoin  the  defendants  from  interfering  with  the  plaintiff's  right  to 
earn  a  livelihood,  from  the  use  of  all  black  lists  or  other  lists  or  devices 
containing  the  name  of  the  plaintiff",  for  the  assessment  of  damages 
and  for  further  relief.     ... 

DeCourcy,   J.     .     .     .     The   basis   of    the   plaintiff's   complaint   is 
that  the  defendants  conspired  against  him,  and  by  means  of  a  black 
list  procured  his  discharge  from  employment.    On  December  12,  1912, 
the  plaintiff,  with  thirty-nine  other  employees  of  the  Witherell  and 
Dobbins  Company,  went  out  on  strike.     He  secured  employment  at 
the  factory  of  Charles  K.  Fox,  Inc.,  on  December  14,  began  work 
on  December  16,  at  7:10  A.  M.,  and  was  discharged  in  a  summary 
and  unusual  manner  about  two  hours  later.    The  master  finds  that  the 
cause  of  his  discharge  was  the  fact  that  he  was  one  of  the  striking 
employees  of  the  Witherell  and  Dobbins  Company,  and  that  there 
existed  a  tacit  understanding,  to  which  the  Fox  Company  was  a  party, 
that  those  striking  employees  should  not  be  employed.     It  appears 
that  on  the  day  of  the  strike,  or  the  day  after,  and  at  the  request  of 
the  defendant  Child  (who  was  the  manager  of  the  Shoe  Manufactur- 
ers' Association),  Mr.  Dobbins  brought  to  a  meeting  of  the  manufac- 
turers several  lists  containing  the  names  of  the  employees  who  had 
gone  on  strike.    Copies  of  the  Hst  were  prepared  and  circulated  by  the 
defendants  for  the  purpose  of  preventing  the  strikers  from  gettin<^ 
work  in  Haverhill  and  vicinity,  and  of  forcing  them  to  abandon  the 
strike  and  return  to  work  at  the  Witherell  and  Dobbins  Company's 
factory  against  their  will.     The  acts  of  the   several   defendants   in 
furtherance  of  this  combination  need  not  be   recited.     The  master 
specifically  has  found  that  Cornellier  was  discharged  at  Fox's  because 
of  this  "black  list."     It  may  be  said  in  passing  that  of  the  twenty  de- 
fendants named  in  the  bill  the  master  finds  that  only  the  following 
(herein  referred  to  as  the  defendants)  were  responsible  for  the  acts 
1  Eq.— 23. 


354  EEPARATTON    AND    PEEVENTIOIsT   OF    TORTS.  (Part    1 

complained  of,  namely,  the  Haverhill  Shoe  Manufacturers'  Associa- 
tion, the  Witherell  and  Dobbins  Company,  Gale  Shoe  Manufacturing 
Company,  Charles  K.  Fox,  Inc.,  Austin  H.  Perry,  Ira  J.  Webster, 
Alwyn  W.  Greeley,  Albert  M.  Child,  George  W.  Dobbins  and  H.  h. 
Webber. 

Did  this  combination  of  the  defendants  to  blacklist  the  striking 
employees  of  the  Witherell  and  Dobbins  Company,  resulting  in  the 
discharge  of  and  damage  to  the  plaintiif,  give  him  a  legal  cause  of 
action?  The  statement  of  the  general  right  of  the  Fox  Company  to 
terminate  a  workman's  employment  when  and  for  what  cause  it 
chooses,  where  no  right  of  contract  is  involved,  does  not  carry  us  far. 
See  Coppage  v.  Kansas,  236  U.  S.  1.  The  same  is  true  of  the  recog- 
nized equal  rights  of  employers  and  employees  to  combine  in  associa- 
tions or  unions,  so  long  as  they  employ  lawful  methods  for  the  attain- 
ment of  lawful  purposes.  See  Hoban  v.  Dempsey,  217  Mass.  166. 
But  it  is  settled  that  the  intentional  interference  by  even  an  in- 
dividual, without  lawful  justification,  with  the  plaintiff's  right  to  have 
the  benefit  of  his  contract  with  his  employer  would  be  an  actionable 
wrong.  Berry  v.  Donovan,  188  Mass.  353.  Hansan  v.  Innis,  211 
Mass.  301.  A  combination  to  blacklist  is  the  counter  weapon  to  a 
combination  to  boycott  and  is  open  to  similar  legal  objections,  when 
directed  against  persons  with  whom  those  combining  have  no  trade 
dispute,  or  when  the  concerted  action  coerces  the  individual  members, 
by  implied  threats  or  otherwise,  to  withhold  employment  from  those 
whom  ordinarily  they  would  employ.  See  New  England  Cement  Gun 
Co.  V.  McGivern,  218  Mass.  198,  and  cases  cited. 

It  is  true  that  in  Worthington  v.  Waring,  157  Mass.  421,  this 
court  refused  to  enjoin  the  defendants  from  making  use  of  a  black 
list,  stating  that  the  rights  alleged  to  be  violated  were  personal 
and  not  property  rights,  and  that  there  were  no  approved  precedents 
in  equity  for  issuing  an  injunction  against  the  grievance  there  com- 
plained of.  In  the  light  of  more  recent  decisions  of  the  court  recog- 
nizing that  the  right  to  labor  and  to  its  protection  from  unlawful  in- 
terference is  a  constitutional  as  well  as  a  common  law  right  there 
appears  to  be  no  sound  reason  why  it  should  not  be  adequately 
protected  tmder  our  present  broad  equity  powers.  As  intimated  in 
Burnham  v.  Dowd,  217  Mass.  351,  359,  the  case  of  Worthington  v. 
Waring  cannot  well  be  reconciled  with  our  later  decision.     It  must 


Gl.    3)  INTEEFEEEXCE  WITH  BUSINESS  EELATIONS.  OOO 

be  considered  as  no  longer  binding  as  an  authority  for  the  doctrine 
that  equity  will  aHford  no  injunctive  relief  against  an  unlawful  com- 
bination to  blacklist. 

Assuming  that,  if  this  were  an  action  at  law.  the  plaintiff  could 
recover  for  the  damages  caused  by  the  unlawful  combination  of  the 
defendants  to  blacklist  him,  the  question  remains  whether  he  is 
entitled  to  prevail  in  the  present  suit.  He  has  brought  these  pro- 
ceedings in  a  court  of  equity.  Under  the  established  maxim  that 
"he  who  comes  into  equity  must  come  with  clean  hands,"  the  court 
will  not  lend  its  active  aid  to  him  if  he  has  been  in  equal  wrong 
with  the  defendants  touching  the  transaction  as  to  which  relief  is 
sought,  but  will  leave  him  to  his  remedy  at  law.  The  strike  at  the 
Witherell  and  Dobbins  factory  in  which  he  joined  is  intimately  con- 
nected with  the  black  list  of  which  he  complains.  The  plaintiff  in- 
dividually was  free,  under  his  contract  at  will,  to  terminate  his  em- 
ployment for  any  reason  that  he  deemed  sufficient.  He  had  an 
undoubted  right  to  join  a  labor  organization.  The  employer  as  an 
individual  had  similar  rights.  But  while  each  had  a  right  to  organize 
with  others,  it  by  no  means  follows  that  the  organizations  lawfully 
could  do  everything  that  the  individual  could  do.  See  Martell  v. 
White,  185  Mass.  255,  260;  Pickett  v.  Walsh,  192  Mass.  572,  582. 
An  act  lawful  in  an  individual  may  be  the  subject  of  civil  conspiracy 
when  done  in  concert,  provided  it  is  done  with  a  direct  intention  to 
injure  another,  or  when,  although  done  to  benefit  the  conspirators, 
its  natural  and  necessary  consequence  is  the  prejudice  of  the  public  or 
the  oppression  of  individuals.    5  R.  C.  L.  1093. 

Without  discussing  the  conflicting  authorities  in  other  jurisdictions, 
in  this  Commonwealth,  in  the  present  stage  of  the  industrial  con- 
troversy, the  principle  is  defined  that  the  legality  of  a  strike  depends 
first  upon  the  purpose  for  which  it  is  maintained,  and  secondly  on  the 
means  employed  in  carrying  it  on.  As  to  the  first,  it  is  no  longer 
in  question  that  organized  labor  lawfully  may  strike  for  higher 
wages,  shorter  hours,  and  improved  shop  conditions.  Minasian  v. 
Osborne  210  Mass.  250,  and  cases  cited.  On  the  other  hand  it  has 
been  decided  that  a  strike  instituted  merely  to  compel  a  closed  shop 
would  not  be  justifiable  on  principles  of  competition,  but  would  be 
unlawful.  Reynolds  v.  Davis,  198  Mass.  294;  Folsom  v.  Lewis,  208 
Mass.  336.     In  the  debatable  ground  between  these  extremes  the  con- 


356'  REPARATION    AND    PREVENTION    OF   TORTS.  (Part    1 

flict  of  rights  must  be  adjusted  as  new  conditions  arise.  And  the 
question  whether  any  particular  strike  is  lawful  is  a  question  of  law. 
DeMinico  v.  Craig,  207  Mass.  593;  Burnham  v.  Down,  217  Mass. 
351,  356.     .     .     . 

It   is   clear    from   the   findings   of    the    master,    however,   that   the 
Witherell  and  Dobbins  strike  was  conducted  by  unlawful  means;  that 
laws  were  violated  and  the  well  established  rights  of  others  invaded. 
On   several   occasions   crowds    of    strikers   paraded   in    front   of    the 
factory,  cheering  and  shouting  "Come  out,"  and  occasionally  adding 
the  names  of  men  who  remained  at  work;  once  at  least  one  hundred 
or  more  paraded  in  front  of  the  factory;  two  by  two  in  one  direction 
and  two  by  two  in  the  opposite  direction,  so  that  there  were  four  per- 
sons abreast  most  of  the  time,  and  the  operatives  leaving  the  factory 
had  difficulty  in  breaking  through  the  line.  Some  of  the  employees  were 
intimidated  and  followed  by  crowds,  others  had  to  be  escorted  home  by 
police  officers,  and  four  or  five  were  assaulted  by  strikers  or  their 
sympathizers  because  they  took  the  place  of  striking  employees.     One 
serious  attack,  characterized  by  the  master  as  cowardly  and  unpro- 
voked, was  made  on  an  employee  named  Mills,  as  he  was  going  home 
after  dark  at  the  conclusion  of  his  day's  work.    And  while  the  persons 
who  committed  the  assaults   were  not  identified,   the   union  and   its 
officials  made  no  effort  to  stop  or  control  them ;  and  the  union  men  who 
were  present  when  Mills  was  assaulted  and  rendered  unconscious  made 
no  effort  to  give  any  aid  or  to  pursue  the  man  who  struck  the  blow. 
The  strike  was  carried  on  in  a  manner  that  reasonably  caused  the 
average  employee  to  be  apprehensive  for  his  personal  safety.     The 
plaintiff  cannot  avoid  responsibility  for  some,  at  least,  of  these  acts. 
The  strike,  which  was  pending  for  more  than  three  months  after  the 
bill  was  filed  (as  well  as  the  "general"  strike),  was  maintained  under 
the  direction  of  the  union  to  which  he  belonged,  and  for  the  recogni- 
tion of  which  he  went  on  strike.    He  took  part  in  the  picketing  and  in 
at  least  one  of  the  parades,  and  otherwise  aided  and  encouraged  it. 
See  Lawlor  v.  Loewe,  235  U.  S.  522. 

The  conduct  of  the  plaintiff  and  the  acts  of  others  with  whom  he 
was  legally  identified  preclude  him  from  obtaining  the  active  aid  of  a 
court  of  equity.  For  any  damage  caused  by  the  black  list  which  the 
defendants  maintained  he  must  seek  his  redress,  if  any,  at  law.  Ac- 
cordingly it  becomes  unnecessary  to  consider  the  effect  upon  his  rights 


Ch.    3)  INTERFEREXCE  WITH  BUSINESS  RELATIONS.  357 

of  his  participation  in  the  general  strike  of  December  30,  and  the 
further  questions,  whether  that  strike  was  for  a  lawful  or  an  unlawful 
purpose,  and  whether  it  was  conducted  by  lawful  or  unlawful  means. 
For  the  reasons  herein  set  forth  a  decree  is  to  be  entered  overruling 
the  exceptions,  confirming  the  master's  report,  and  dismissing  the 
bill  of  complaint. 


HAWARDEN  v.  THE  YOUGHIOGHENY  &  LEHIGH  COAL  CO. 

(Supreme  Court  of  Wisconsin,  1901,  111  Wis.  545,  87  N.  W.  472.) 

WiNSLOw,  J.  The  first  count  of  the  complaint  is  claimed  to  state 
a  cause  of  action  at  law  to  recover  damages  resulting  from  an  unlaw- 
ful conspiracy,  and  the  second  count  a  cause  of  action  in  equity  on 
behalf  of  a  class  to  restrain  the  further  execution  of  the  conspiracy, 
and  both  counts  are  challenged  by  demurrer  for  insufficiency  of  facts. 

L  The  gist  of  the  first  count  is  that  the  plaintiff  was  a  retail  coal 
dealer  in  the  city  of  Superior;  that  the  defendants,  "the  wholesalers," 
own  practically  all  the  coal  docks  at  Superior  and  Duluth,  and  that  a 
retailer  cannot  carry  on  his  business  at  Superior  unless  he  can  buy  of 
the  wholesalers  freely  and  wil'hout  discrimination ;  that  the  wholesalers 
entered  into  a  combination  with  the  defendant  retailers  by  which  it 
was  agreed  that  the  wholesalers  should  sell  coal  to  the  defendant  retail- 
ers, and  to  none  others,  for  the  purpose,  among  others,  of  forcing  out  of 
the  retail  trade  all  retailers  not  in  the  combination,  and  among  others  the 
plaintiff ;  that  such  agreement  or  conspiracy  has  been  successful,  and  as 
a  result  thereof  the  plaintiff's  business  has  been  destroyed,  to  his 
damage.  Do  these  facts  constitute  a  cause  of  action  at  common  law  ? 
We  think  they  do.  It  is  undoubtedly  true  that,  in  the  absence  of  any 
statute  to  the  contrary,  several  persons  may  combine  for  the  purpose 
of  increasing  their  business  and  making  greater  gains  by  any  legiti- 
mate means,  and  if,  as  the  incidental  result  of  that  combination,  others 
are  driven  out  of  business,  there  is  no  actionable  wrong.  It  is  also  true 
that  one  person,  or  a  number  of  persons,  by  agreement  may  refuse  to 
sell  goods  to  another,  if  the  purpose  of  such  refusal  be  simply  to 
promote  his  or  their  own  welfare.  From  these  propositions  it  is 
argued  that  no  actionable  wrong  is  shown  in  the  present  case;  that 


358  EEPAEATION    AND    PEEVENTION   OF   TOKTS.  (Part    1 

the  main  purpose  of  the  agreement  charged  was  the  lawful  purpose  to 
increase  their   own  gains   hy   legitimate   means,   and   hence  that   the* 
plaintiff  is   remediless,   notwithstanding   it   is   also   charged  that   one 
purpose  of  the  agreement  was  to  drive  the  plaintiff  out  of  business. 

It  may  at  once  be  admitted  that  this  line  of  reasoning  has  been 
adopted  by  some  of  the  courts  which  have  been  called  upon  to  deal  with 
the  subject.  It  has  not,  however,  been  adopted  by  this  court;  in  fact 
in  the  very  recent  case  of  State  ex  rel.  Burner  v.  Huegin,  110  Wis. 
189,  it  was,  in  effect,  repudiated.  It  is  true  that  case  was  a  criminal 
case,  but  it  necessarily  involved  the  question  of  civil  conspiracies  at 
common  law,  as  well  as  criminal  conspiracies,  and  to  the  very  full 
discussion  there  given  by  Mr.  Justice  Marshall  it  seems  that  very 
little  can  profitably  be  added.  It  was  there  stated,  in  substance  and 
effect,  that  persons  have  a  right  to  combine  together  for  the  purpose 
o!  promoting  their  individual  welfare  in  any  legitimate  way,  but  where 
the  purpose  of  the  organization  is  to  inflict  injury  on  another,  and 
injury  results,  a  wrong  is  committed  upon  such  other;  and  this  is  so 
notwithstanding  such  purpose,  if  formed  and  executed  by  an  individ- 
ual, would  not  be  actionable.  One  person  may,  through  malicious 
motives,  attract  to  himself  another's  customers,  and  thus  ruin  the 
business  of  such  other  without  redress ;  but  when  a  number  of  per- 
sons, acting  wholly  or  in  part  from  such  malicious  motives,  combine 
together,  the  injury  to  such  other  is  actionable.  "Where  the  act  is 
lawful  for  an  individual,  it  can  be  the  subject  of  conspiracy,  when  done 
in  concert,  only  where  there  is  a  direct  intention  that  injury  shall  re^ 
suit  from  it." 

These  principles  are  decisive  as  to  the  first  count  in  this  complaint. 
The  allegation  is  distinct  and  clear  that  one  of  the  purposes  and  ob- 
jects of  this  agreement  was  to  drive  the  plaintiff  out  of  business.  This 
was  an  ulterior  and  unlawful  purpose,  and  constitutes  malice  in  con- 
templation of  law.  Therefore,  under  the  allegations  of  the  complaint, 
it  is  clear  that  the  combination  here  formed  was  formed  for  the  mali- 
cious purpose  of  doing  an  injury  to  another,  and  that  such  injury  has 
resulted,  and  hence  that  a  cause  of  action  at  law  for  damages  is 
stated.     .     .     . 

In  the  second  count  the  plaintiff  attempts  on  behalf  of  a  class  of 
persons,  namely,  the  retailers  who  were  excluded  from  the  combina- 
tion, to  obtain  equitable  relief  by  way  of  a  perpetual  injunction  restrain- 


Ch.    3)  INTERFERENCE  WITH  BUSINESS  RELATIONS.  359 

ing  the  continuance  of  the  operations  of  the  conspiracy.  That  courts 
of  equity  have  jurisdiction  to  restrain  such  conspiracies  when  irrep- 
arable injury  will  result  and  legal  remedies  will  prove  inadequate  or  a 
multiplicity  of  suits  be  necessary,  seems  to  be  well  settled.  Beck  v. 
Railway  T.  P.  Union,  118  Mich  498.  That  the  conspiracy  may  be 
directed  against  a  considerable  number  of  persons  as  well  as  against 
one,  cannot  be  doubted.  We  have,  therefore,  before  us  an  unlawful 
conspiracy  directed  against  a  large  number  of  persons,  which  has 
already  resulted  in  driving  out  of  business  a  considerable  number  of 
such  persons,  and  which  the  defendants  threaten  to  continue  indefinite- 
ly against  the  whole  class. 

Plaintifit  claims  that  this  situation  brings  the  case  within  that  pro- 
vision of  the  statute  contained  in  sec.  2604,  Stats,  1898,  which  declares, 
"when  the  question  is  one  of  common  or  general  interest  of  many 
persons,  .  .  .  one  or  more  may  sue  for  the  benefit  of  the  whole." 
The  question  as  to  the  legality  of  this  conspiracy  is  certainly  one  of 
common  and  general  interest  to  all  persons  against  whom  it  was  di- 
rected and  is  being  enforced.  The  complaint  alleges  that  there  are 
many  of  such  persons,  and  we  are  unable  to  perceive  any  fault  in  the 
plaintiff's  contention.  It  is  to  be  noted  that  there  are  two  cases  named 
in  the  statutes  referred  to  in  which  one  may  sue  for  all,  viz:  (1)  When 
the  question  is  one  of  common  or  general  interest  of  many  persons, 
and  (2)  when  the  parties  are  very  numerous,  and  it  is  impracticable 
to  bring  them  all  before  the  court.  The  latter  class  was  under  con- 
sideration in  the  cases  of  George  v.  Benjamin,  100  Wis.  622,  and 
Hodges  V.  Nalty,  104  Wis.  464;  hence  what  is  said  in  those  cases  as 
to  the  number  of  persons  which  will  be  deemed  "very  numerous"  is 
inapplicable  here,  because  this  case  comes  under  the  first  subdivision, 
which  only  requires  the  presence  of  a  question  of  common  or  general 
interest  of  many  persons.  These  conditions  are  satisfied  here,  and  we 
conclude  that  the  second  count  states  a  good  cause  of  action  in  equity 
by  the  plaintiff  on  behalf  of  himself  and  a  class  composed  of  all  other 
retail  coal  dealers  in  Superior  similarly  situated.     .     .     . 


360  REPARATION    AND    PREVENTION    OF    TORTS.  (Part    1 

TUTTLE  V.  BUCK. 

(Supreme  Court  of  Minnesota,  1911,  107  Minn.,  146,  119  N.  W.  946.) 

This  appeal  was  from  an  order  overruling  a  general  demurrer  to 
a  complaint  in  which  the  plaintiff  alleged : 

That  for  more  than  ten  years  last  past  he  has  been  and  still  is  a 
barber  by  trade,  and  engaged  in  business  as  such  in  the  village  of 
Howard  Lake,  Minnesota,  where  he  resides,  owning  and  operating  a 
shop  for  the  purpose  of  his  said  trade.  That  until  the  injury  herein- 
after complained  of  his  said  business  was  prosperous,  and  plaintiff 
was  enabled  thereby  to  comfortably  maintain  himself  and  family  out 
of  the  income  and  profits  thereof,  and  also  to  save  a  considerable  sum 
per  annum,  to  wit,  about  $800.  That  the  defendant,  during  the 
period  of  about  twelve  months  last  past,  has  wrongfully,  unlawfully, 
and  maliciously  endeavored  to  destroy  plaintiff's  said  business,  and 
compel  plaintiff  to  abandon  the  same.  That  to  that  end  he  has  per- 
sisted and  systematically  sought,  by  false  and  malicious  reports  and 
accusations  of  and  concerning  the  plaintiff,  by  personally  soliciting  and 
urging  plaintiff's  patrons  no  longer  to  employ  plaintiff,  by  threats  of 
his  personal  displeasure,  and  by  various  other  unlawful  means  and 
devices,  to  induce,  and  has  thereby  induced,  many  of  said  patrons  to 
withhold  from  plaintiff  the  employment  by  them  formerly  given.  That 
defendant  is  possessed  of.  large  means,  and  is  engaged  in  the  business 
of  a  banker  in  said  village  of  Howard  Lake,  at  Dassel,  Minnesota, 
and  at  divers  other  places,  and  is  nowise  interested  in  the  occupation  of 
a  barber ;  yet  in  pursuance  of  the  wicked,  malicious,  and  unlawful 
purpose  aforesaid,  and  for  the  sole  and  only  purpose  of  injuring  the 
trade  of  the  plaintiff,  and  of  accomplishing  his  purpose  and  threats  of 
ruining  the  plaintiff's  said  business  and  driving  him  out  of  said  village, 
the  defendant  fitted  up  and  furnished  a  barber  shop  in  said  village 
for  conducting  the  trade  of  barbering.  That  failing  to  induce  any 
barber  to  occupy  said  shop  on  his  own  account,  though  offered  at 
nominal  rental,  said  defendant,  with  the  wrongful  and  malicious  pur- 
pose aforesaid,  and  not  otherwise,  has  during  the  time  herein  stated 
hired  two  barbers  in  succession  for  a  stated  salary,  paid  by  him,  to 
occupy  said  shop,  and  to  serve  so  many  of  plaintiff's  patrons  as  said 


Cll.    3)  INTERFERENCE  WITH  BUSINESS  RELATIONS.  361 

defendant  has  been  or  may  be  able  by  the  means  aforesaid  to  divert 
from  plaintiff's  shop.  That  at  the  present  time  a  barber  so  em- 
ployed and  paid  by  the  defendant  is  occupying  and  nominally  conduct- 
ing the  shop  thus  fitted  and  furnished  by  the  defendant,  without  paying 
any  rent  therefor,  and  under  an  agreement  with  defendant  whereby 
the  income  of  said  shop  is  required  to  be  paid  to  defendant,  and  is  so 
paid  in  partial  return  for  his  wages.  That  all  of  said  things  were 
and  are  done  by  defendant  with  the  sole  design  of  injuring  the 
plaintiff,  and  of  destroying  his  said  business,  and  not  for  the  purpose 
of  serving  any  legitimate  interest  of  his  own.  That  by  reason  of  the 
great  wealth  and  prominence  of  the  defendant,  and  the  personal 
and  financial  influence  consequent  thereon,  he  has  by  the  means 
aforesaid,  and  through  other  unlawful  means  and  devices  by  him 
employed,  materially  injured  the  business  of  the  plaintiff,  has  largely 
reduced  the  income  and  profits  thereof,  and  intends  and  threatens 
to  destroy  the  same  altogether,  to  plaintiff's  damage  in  the  sum  of 
$10,000.     .     .     . 

Elliot,  J For  generations  there  has  been  a  practical 

agreement  upon  the  proposition  that  competition  in  trade  and  business 
is  desirable,  and  this  idea  has  found  expression  in  the  decisions  of 
the  courts  as  well  as  in  statutes.  But  it  has  led  to  grievous  and  mani- 
fold wrongs  to  individuals,  and  many  courts  have  manifested  an 
earnest  desire  to  protect  the  individual  from  the  evils  which  result 
from  unrestrained  business  competition.  The  problem  has  been  to 
so  adjust  matters  as  to  preserve  the  principle  of  competition  and 
yet  guard  against  its  abuse  to  the  unnecessary  injury  to  the  individual. 
So  the  principle  that  a  man  may  use  his  own  property  according  to 
his  own  needs  and  desires,  while  true  in  the  abstract,  is  subject  to 
many  limitations  in  the  concrete.  Men  cannot  always,  in  civilized 
society,  be  allowed  to  use  their  own  property  as  their  interests  or  de- 
sires may  dictate  without  reference  to  the  fact  that  they  have  neighbors 
whose  rights  are  as  sacred  as  their  own.  The  existence  and  well- 
being  of  society  require  that  each  and  every  person  shall  conduct  him- 
selft  consistently  with  the  fact  that  he  is  a  social  and  reasonable  per- 
son. The  purpose  for  which  a  man  is  using  his  own  property  may 
thus  sometimes  determine  his  rights,  and  applications  of  this  idea 
are  found  in  Stillwater  Water  Co.  v.  Farmer,  89  Minn.  58,  93  N.  W. 
907,  60  T..  R.  A.  875.  99  Am.  St.  541,  Td..  92  Minn.  230.  99  N.  W. 


362  REPARATION    AND    PREVENTION    OF    TORTS.  (Part    1 

882,  and  Barclay  v.  Abraham,  121  Iowa,  619,  96  N.  W.  1080,  64  L.  R. 
A.  255,  100  Am  St.  365. 

Many  of  the  restrictions  which  should  be  recognized  and  enforced 
result  from  a  tacit  recognition  of  principles  which  are  not  often 
stated  in  the  decisions  in  express  terms.  Sir  Frederick  Pollock  notes 
that  not  many  years  ago  it  was  difficult  to  find  any  definite  authority 
for  stating  as  a  general  proposition  of  English  law  that  it  is  wrong 
to  do  a  wilful  wrong  to  one's  neighbor  without  lawful  justification 
or  excuse.  But  neither  is  there  any  express  authority  for  the  general 
proposition  that  men  must  perform  their  contracts.  Both  principles, 
in  this  generality  of  form  and  conception,  are  modern  and  there  was 
a  time  when  neither  was  true.  After  developing  the  idea  that  law 
begins,  not  with  authentic  general  principles,  but  with  the  enumeration 
of  particular  remedies,  the  learned  writer  continues:  "If  there  exists, 
then,  a  positive  duty  to  avoid  harm,  much  more  must  there  exist  the 
negative  duty  of  not  doing  wilful  harm,  subject,  as  all  general  duties 
must  be  subject,  to  the  necessary  exceptions.  The  three  main  heads  of 
duty  with  which  the  law  of  torts  is  concerned,  namely,  to  abstain  from 
wilful  injury,  to  respect  the  property  of  others,  and  to  use  due  diligence 
to  avoid  causing  harm  to  others,  are  all  alike  of  a  comprehensive 
nature."  Pollock,  Torts,  (8th  Ed.)  p.  21.  He  then  quotes  with  ap- 
proval the  statement  of  Lord  Bowen  that  "at  common  law  there  was  a 
cause  of  action  whenever  one  person  did  damage  to  another,  wil- 
fully and  intentionally,  without  just  cause  or  excuse." 

In  Plant  v.  Woods,  176  Mass.  492,  57  N.  E.  1011,  51  L.  R.  A.  339, 
79  Am.  St.  330,  Mr.  Justice  Hammond  said:  "it  is  said  also  that,  where 
one  has  the  lawful  right  to  do  a  thing,  the  motive  by  which  he  is 
actuated  is  immaterial.  One  form  of  this  statement  appears  in  the 
first  headnote  in  Allen  v.  Flood,  as  reported  in  (1898)  A.  C.  1,  as 
follows :  'An  act  lawful  in  itself  is  not  converted  by  a  malicious  or  bad 
motive  into  an  unlawful  act  so  as  to  make  the  doer  of  the  act  liable  to  a 
civil  action.'  If  the  meaning  of  this  and  similar  expressions  is  that 
where  a  person  has  the  lawful  right  to  do  a  thing,  irrespective  of 
his  motive,  his  motive  is  immaterial,  the  proposition  is  a  mere  truism. 
If,  however,  the  meaning  is  that  where  a  person  if  actuated  by  one 
kind  of  a  motive  has  a  lawful  right  to  do  a  thing,  the  act  is  lawful 
when  done  under  any  conceivable  motive,  or  that  an  act  lawful  under 
one  set  of  circumstances  is  therefore  lawful  under  every  conceivable 


oil.    3)  INTERFERENCE  WITH  BUSIKESS  RELATIONS.  363 

set  of  circumstances,  the  proposition  does  not  commend  itself  to  lis 
as  either  logically  or  legall}'  accurate."     .     .     . 

It  is  freely  conceded  that  there  are  many  decisions  contrary  to  this 
view ;  but,  when  carried  to  the  extent  contended  for  by  the  appellant,  we 
think  they  are  unsafe,  unsound,  and  illy  adapted  to  modern  conditions. 
To  divert  to  one's  self  the  customers  of  a  business  rival  by  the  offer  of 
goods  at  lower  prices  is  in  general  a  legitimate  mode  of  serving  one's 
own  interest,  and  justifiable  as  fair  competition.  But  when  a  man 
starts  an  opposition  place  of  business,  not  for  the  sake  of  profit  to  him- 
self, but  regardless  of  loss  to  himself,  and  for  the  sole  purpose  of  driv- 
ing his  competitor  out  of  business,  and  with  the  intention  of  himself 
retiring  upon  the  accomplishment  of  his  malevolent  purpose,  he  is 
guilty  of  a  wanton  wrong  and  an  actionable  tort.  In  such  a  case  he 
would  not  be  exercising  his  legal  right,  or  doing  an  act  which  can 
be  judged  separately  from  the  motive  which  actuated  him.  To  call 
such  conduct  competition  is  a  perversion  of  terms.  It  is  simply  the 
application  of  force  without  legal  justification,  which  in  its  moral 
quality  may  be  no  better  than  highway  robbery. 

Nevertheless,  in  the  opinion  of  the  writer  this  complaint  is  insuffi- 
cient. It  is  not  claimed  that  it  states  a  cause  of  action  for  slander. 
No  question  of  conspiracy  or  combination  is  involved.  Stripped  of 
the  adjectives  and  the  statement  that  what  was  done  was  for  the  sole 
purpose  of  injuring  the  plaintiff,  and  not  for  the  purpose  of  serving 
a  legitimate  purpose  of  the  defendant,  the  complaint  states  facts 
which  in  themselves  amount  only  to  an  ordinary  everyday  business 
transaction.  There  is  no  allegation  that  the  defendant  was  intention- 
ally running  the  business  at  a  financial  loss  to  himself,  or  that  after 
driving  the  plaintiff  out  of  his  business  the  defendant  closed  up  or 
intended  to  close  up  his  shop.  From  all  that  appears  from  the  com- 
plaint he  may  have  opened  the  barber  shop,  energetically  sought 
business  from  his  acquaintances  and  the  customers  of  the  plaintiff, 
and  as  a  result  of  his  enterprise  and  command  of  capital  obtained  it, 
with  the  result  that  the  plaintiff,  from  want  of  capital,  acquaintance, 
or  enterprise,  was  unable  to  stand  the  competition  and  was  thus  driven 
out  of  business.  The  facts  thus  alleged  do  not,  in  my  opinion,  in  ihem- 
selves,  without  reference  to  the  way  in  wliicli  they  arc  characteri/.ed 
by  the  pleader,  tend  to  show  a  malicious  and  wanton  wrong  to  the 
plaintiff. 


364  EEPAEATION    AND    PEEVENTION   OF   TOETS.  (Part    1    ,„„ 

Iffi 

'11 

A  majority  of  the  justices,  however,  are  of  the  opinion  that,  on  the'ra 

'Jill 
principle  declared  in  the  foregoing  opinion,  the  complaint  states  a  cause' h'{ 

of  action,  and  the  order  is  therefore  affirmed.  >x:\ 

Affirmed.  !  ; 


SECTION  X.  DEFAMATION— INTERFERENCE  WITH 

PRIVACY. 


EMACK  V.  KANE. 

(United  States  Circuit  Court,  1888,  34  Fed.  46.) 

Blodgett,  J.  This  is  a  bill  in  equity,  in  which  the  complainant 
seeks  to  restrain  the  defendant  Kane  from  sending  circulars  inju- 
rious to  the  complainant's  trade  and  business.  Both  complainant 
and  defendants  are  manufacturers  of  what  are  known  as  "noiseless" 
or  "mufifled"  slates  for  use  of  school  children.  .  .  .  Since  August 
1,  1883,  up  to  the  filing  of  this  bill,  which  was  in  March,  1884,  the 
defendants  have  sent  out  to  the  trade, — that  is,  to  the  jobbers  and 
persons  engaged  in  this  class  of  slates, — circulars  threatening  all 
who  should  buy  from  the  complainant,  or  deal  in  his  slates,  with 
law-suits,  upon  the  ground  that  complainant's  slate  is  an  infringe- 
ment of  the  Goodrich  patent  as  reissued.  I  do  not  intend  to  quote 
all  these  circulars,  but  extracts  from  a  few  will  illustrate  the  char- 
acter of  the  attacks  which  the  defendants  have  made  upon  the  com- 
plainant's business.  In  a  circular  issued  September  26,  1882,  and 
sent  generally  to  the  trade,  occurs  the  following  language: 

"What  do  we  propose  to  do  with  infringers?  Nothing  for  the 
present,  so  far  as  prosecuting  Emack  is  concerned,  and  for  reasons 
that  the  trade  well  understand.  We  could  stop  him,  of  course,  but 
he  would  open  out  the  next  day  in  another  loft  or  basement,  and 
under  another  name,  and  put  us  to  the  expense  of  another  suit,  and 
'so  on  indefinitely.  When  we  commence  suit  we  want  to  be  sure  of 
damages.     The  language  of  the  original   patent   was   somewhat  am- 


1 


■  '.^ 


Cb.    3)  DEFAMATION PRIVACY.  365 

bigtious,  and  hence  there  was  some  excuse  for  those  who  sold  it, 
beheving  that  it  was  not  an  infringement.  There  can  be  no  mistake 
now.  The  language  of  the  claims  could  not  he  made  plainer.  Any 
dealer  who  now  sells  the  Emack  slate  knows  that  he  is  selling  an 
infringement  of  our  patent,  and  we  shall  protect  ourselves  and  our 
friends  by  holding  all  who  are  responsible  for  royalty  and  damages." 

"To  our  friends:  We  will  say  that  very  few  jobbers  have  handled 
the  Emack  slate.  Failing  to  sell  to  the  jobbing  trades,  he  went  to  the 
leading  retailers,  and  sold  them  all  he  could.  They,  of  course,  had 
heard  nothing  of  our  claims  as  to  infringement,  as  we  sell  only  to 
jobbers.  We  now  know  every  man  in  the  country  who  handles  these 
slates,  and  shall  notify  them  all  promptly  of  the  reissue  of  the 
patent.  Then,  if  they  continue  to  sell,  we  shall  be  forced  to  adopt 
legal  measures."     .     .     . 

Many  more  extracts  might  be  made  from  these  circulars,  which 
appear  in  the  proof,  but  this  is  enough  to  show  the  spirit  in  which 
the  defendant  attempted  to  intimidate  the  complainant's  customers 
from  dealing  with  him,  or  dealing  in  the  slates  manufactured  by 
him;  and  the  proof  shows  abundantly  that  much  business  has  been 
diverted  from  the  complainant  by  these  threats  and  circulars;  that 
the  complainant's  business  has  been  seriously  injured,  and  his  profits 
very  much  abridged  by  the  course  pursued  in  sending  out  these  cir- 
culars. The  proof  in  this  case  also  satisfies  me  that  these  threats 
made  by  defendants  were  not  made  in  good  faith.  The  proof  shows 
that  defendants  brought  three  suits  against  Emack's  customers,  for 
alleged  infringement  of  the  Goodrich .  patent  by  selHng  the  Emack 
slates;  that  Emack  assumed  the  defense  in  these  cases,  and,  after 
the  proofs  were  taken,  and  the  suits  ripe  for  hearing,  the  defendants 
voluntarily  dismissed  them, — the  dismissals  being  entered  under  such 
circumstances  as  to  fully  show  that  the  defendants  knew  that  they 
could  not  sustain  the  suits  upon  their  merits;  that  said  suits  were 
brought  in  a  mere  spirit  of  bravado  or  intimidation,  and  not  with  a 
bona  fide  intent  to  submit  the  question  of  infringement  to  a  judicial 
decision. 

The  defense  interposed  is — First,  that  these  circulars  were  mere 
friendly  notices  to  the  trade  of  the  claims  made  by  defendant  as  to 
what  was  covered  by  the  Goodrich  patent;  second,  that  a  court  of 
equity  has  no  jurisdiction  to  entertain  a  bill   of  this  character,  and 


366  REPARATTOlSr    AND    PREVENTION   OF    TORTS.  (Part    1 

restrain  a  party  from  issuing  circulars,  even  if  they  are  injurious  to 
the  trade  of  another. 

I  cannot  beheve  that  a  man  is  remediless  against  persistent  and 
continued  attacks  upon  his  business,  and  property  rights  in  his  busi- 
ness, such  as  have  been  perpetrated  by  these  defendants  against  the 
complainant,  as  shown  by  the  proofs  in  this  case.  It  shocks  my  sense 
of  justice  to  say  that  a  court  of  equity  cannot  restrain  systematic 
and  methodical  outrages  like  this,  by  one  man  upon  another's  prop- 
erty rights.  If  a  court  of  equity  cannot  restrain  an  attack  like  this 
upon  a  man's  business,  then  the  party  is  certainly  remediless,  because 
an  action  at  law  in  most  cases  would  do  no  good,  and  ruin  would  be 
accomplished  before  an  adjudication  would  be  reached.  True,  it 
may  be  said  that  the  injured  party  has  a  remedy  at  law,  but  that  might 
imply  a  multiplicity  of  suits  which  equity  often  interposes  to  relieve 
from ;  but  the  still  more  cogent  reason  seems  to  be  that  a  court  of  equity 
can,  by  its  writ  of  injunction,  restrain  a  wrongdoer,  and  thus  pre- 
vent injuries  which  could  not  be  fully  redressed  by  a  verdict  and 
judgment  for  damages  at  law.  Redress  for  a  mere  personal  slander 
or  libel  may  perhaps  properly  be  left  to  the  courts  of  law,  because  no 
falsehood,  however  gross  and  malicious  can  wholly  destroy  a  man's 
reputation  with  those  who  know  him ;  but  statements  and  charges  in- 
tended to  frighten  away  a  man's  customers,  and  intimidate  them  from 
dealing  with  him,  may  wholly  break  up  and  ruin  him  financially, 
with  no  adequate  remedy  if  a  court  of  equity  cannot  afford  protection 
by  its  restraining  writ. 

The  effect  of  the  circulars  sent  out  by  the  defendant  Kane  cer- 
tainly must  have  been  to  intimidate  dealers  from  buying  of  the  com- 
plainant, or  dealing  in  slates  of  his  manufacture,  because  of  the  al- 
leged infringement  of  the  Goodrich  patent.  No  business  man  wants 
to  incur  the  dangers  of  a  lawsuit  for  the  profits  which  he  may  make 
as  a  jobber  in  handling  goods  charged  to  be  an  infringement  of  another 
man's  patent.  The  inclination  of  most  business  men  is  to  avoid  lit- 
igation, and  to  forego  even  certain  profits,  if  threatened  with  a 
lawsuit  which  would  be  embarrassing  and  vexatious,  and  might  mulct 
them  in  damages  far  beyond  their  profits;  and  hence  such  persons, 
although  having  full  faith  in  a  man's  integrity,  and  in  the  merit  of 
his  goods,  would  naturally  avoid  dealing  with  him  for  fear  of  pos- 
sibly becoming  involved  in  the  threatened  litigation.     The  complain- 


Ch.    3)  DEFAMATION — PRIVACY.  367 

ant,  as  I  have  already  stated,  was  engaged  in  the  manufacture  of 
school  slates  under  the  Butler  and  Mallett  patents ;  the  Butler  patent 
being  much  older  than  the  Goodrich,  and  the  Mallett  patent  being 
nearly  contemporaneous  in  issue  witia  the  Goodrich  patent,  under 
which  the  defendant  was  manufacturing.  But  the  proof  in  this  case 
shows  a  still  older  patent,  granted  to  one  Munger,  in  1860,  for  a 
muffled  or  noiseless  slate,  which  most  clearly  so  far  anticipates  the 
patents  of  both  complainant  and  defendants,  as  to  limit  them,  re- 
spectfully, to  their  specific  devices.  But  I  do  not  think  the  fact 
that  complainant  was  the  owner  of  these  patents  or  operating  under 
them,  material  to  the  questions  in  this  case.  The  defendants  claim  that 
complainant's  slates  infringe  the  Goodrich  reissue  patent,  and  threaten 
complainant's  customers  with  suits  if  they  deal  in  complainant's  slates. 
The  state  of  the  art  to  which  the  Goodrich  patent  pertains  may  be 
examined  for  the  purpose  of  aiding  the  court  in  passing  upon  the 
question  of  defendant's  good  faith  in  making  such  threats,  and  the 
state  of  the  art  is  only  material,  as  it  seems  to  me,  for  this  purpose. 
The  court  will  not  attempt,  in  a  collateral  proceeding  like  this,  to 
pass  upon  the  validity  of  the  Goodrich  patent,  but  will  consider,  in 
the  light  of  the  proof  as  to  the  state  of  the  art,  and  the  proof  as  to 
defendant's  conduct,  whether  the  defendant  made  these  threats  against 
complainant's  customers  because  he  in  good  faith  believed  that  com- 
plainant's slates  infringed  the  patent  and  intended  to  prosecute  for 
such  infringement,  or  whether  such  threats  were  made  solely  to  in- 
timidate and  frighten  customers  away  from  complainant,  and  with 
no  intention  of  vindicating  the  validitity  of  his  patent  by  a  suit  or 
suits.  Instead  of  going  into  the  courts  to  test  the  validity  of  the 
Butler  patent,  or  the  right  of  complainant  to  make  the  kind  of  slates 
he  was  putting  upon  the  market,  the  defendant,  in  a  bullying  and 
menacing  style,  asserts  to  the  trade  by  these  circulars  that  complain- 
ant is  infringing  the  Goodrich  patent,  and  threatens  all  who  deal  in 
complainant's  slates  with  lawsuits,  and  all  the  perils  and  vexations 
which  attend  upon  a  patent  suit.  The  average  business  man  un- 
doubtedly dreads,  and  avoids,  if  he  can,  a  lawsuit  of  any  kind,  but  a 
suit  for  infringement  of  a  patent  is  so  far  outside  of  the  common 
man's  experience  that  he  is  terrorized  by  even  a  threat  of-  such  a 
suit.  There  seems  to  me  certainly  good  grounds  for  doubting  the 
validity  of  the  Goodrich  patent  in  the  light  of  the  state  of  the  art  at 


368;  EEPARATION    AND    PREVENTION    OF   TORTS.  (Part    1 

the  time  he  entered  the  field;  and  that  any  lawyer  well  versed  in  the 
law  of  patents  would  surely  hesitate  to  advise  that  the  complainant's 
slates  infringed  the  Goodrich  patent,  either  before  or  after  the  re- 
issue; and  the  conduct  of  the  defendant  in  dismissing  his  suits  for 
such  alleged  infringement  without  trial,  shows  that  he  did  not  believe 
that  such  infringement  could  be  established. 

I  am,  therefore,  of  opinion  that  the  complainant  has  made  a  case 
entitling  him  to  the  interposition  of  a  court  of  equity  to  prevent  the 
issue  of  circulars,  or  written  or  oral  assertion,  that  the  slates  made 
by  the  complainant  are  an  infringement  upon  the  defendant's  patent ; 
and  a  decree  may  accordingly  be  entered  as  prayed  in  the  bill. 


NATIONAL  LIFE  INS.  CO.  v.  MYERS. 

(Illinois  Appellate  Court.  1908,  140  111.  App.  392.) 

Freeman,  J.  It  is  contended  in  behalf  of  appellant  that  the  agree- 
ment set  up  in  the  bill  wherein  appellant,  in  consideration  of  the 
withdrawal  of  an  injunction  and  dismissal  by  appellee  of  a  bill  of 
complaint  then  pending,  is  said  to  have  agreed  not  to  publish  an 
alleged  libel,  is  void ;  that  "the  bill  does  not  properly  set  up  a  con- 
spiracy;" that  the  injunction  order  is  void  for  uncertainty;  and  that 
equity  has  no  jurisdiction  to  enjoin  a  libel. 

So  far  as  they  are  well  pleaded  the  averments  of  the  bill,  for  the 
purposes  of  this  interlocutory  appeal,  must  be  taken  as  admitted.  It 
is  urged,  however,  by  appellant's  counsel  that  the  correctness  of  some 
of  the  statements  made  in  the  publications  referred  to  in  the  bill, 
and  attached  to  and  made  a  part  thereof,  are  "nowhere  denied."  The 
bill  alleges  in  the  most  emphatic  manner  that  these  publications  con- 
tain false,  scandalous  and  malicious  statements  and  that  they  were 
prepared  and  circulated  with  the  intent  "to  destroy  the  good  name, 
reputation,  property  and  business"  of  appellee;  "for  the  purpose  of 
attempting  to  levy  blackmail,"  and  for  the  purpose  of  "defrauding  and 
injuring"  appellee;  that  the  publications  contain  "divers  false,  scan- 
dalous, malicious  and  libelous  statements  concerning  your  orator,  its 
business,  its  property  and  its  officers."  A  number  of  paragraphs  from 
said  publications  are  set  forth  in  the  bill,  the  statements  of  which  are 


Ch.    3)  DEFAMATION — PRIVACY.  369 

specifically  charged  to  be  false  and  to  have  been  published  with  the 
intent  and  for  the  purpose  of  injuring  appellant  in  its  business.  It 
is  averred  that  by  said  publications  it  was  intended  to  create  a  false 
impression  that  appellee's  afi'airs  were  under  investigation  by  policy 
holders  and  others,  that  appellee  had  been  guilty  of  crime  and  violated 
the  penal  laws  in  the  management  of  its  business  and  assets,  that  its 
officers  are  dishonest,  have  sworn  falsely  and  handled  appellee's  assets 
with  intent  to  convert  the  same  to  their  own  use,  that  appellee  is 
insolvent  and  has  reported  fictitious  assets,  that  in  four  years  $1,600,- 
000  of  appellee's  assets  have  been  converted  to  the  personal  use  of 
officers  and  directors  of  appellee,  all  of  which,  as  well  as  other  like 
statements,  the  bill  charges,  are  false  and  made  for  the  purpose  of 
destroying  its  business.  It  is  charged  that  irreparable  injury  has  been 
done  and  is  being  done  by  these  publications  for  wdiich  no  adequate 
remedy  exists  at  law.  In  view,  therefore,  of  the  whole  tenor  of  the 
averments  of  the  bill,  it  is  difficult  to  see  what  bearing  the  alleged 
failure  to  deny  a  specific  statement  in  some  of  these  publications  has 
upon  the  question  now  before  us  as  to  the  propriety  of  the  interlocu- 
tory injunction  of  which  appellant  complains. 

It  is  urged  that  the  agreement  was  void  which  the  bill  states  ap- 
pellant entered  into,  not  to  publish  or  circulate  thereafter  "any  false 
or  defamatory  written  statements  or  reports  about  the  good  name, 
business,  property  or  stability  of  "appellee,  in  consideration  of  the 
delivery  by  appellee  to  appellant  of  certain  papers  in  its  possession,  the 
dissolution  of  an  injunction  against  appellant  and  the  dismissal  of  the 
bill  of  complaint  upon  which  such  injunction  had  issued.  The  con- 
tention seems  to  be  that  the  consideration  of  this  agreement  was  to 
the  effect  that  appellant  would  "not  publish  or  divulge  matters  in 
which  the  public  had  an  interest,"  and  that  such  agreement  is  void  as 
against  public  policy ;  that  "a  promise  not  to  do  what  the  law  pro- 
hibits" is  an  adequate  consideration  for  such  agreement.  We  are 
not  aware  of  any  rightful  or  lawful  interest  the  public  can  have  in 
false  or  defamatory  publications  made  with  intent  wrongfully  to  in- 
jure the  property  and  business  of  anyone.  Appellant's  contention 
seems  to  be  to  the  effect  that  the  contract  referred  to,  which  appellant 
is  charged  with  having  violated,  was  not  and  is  not  a  valid  subsisting 
contract,  for  want  of  a  legal  consideration,  and  therefore  a  court  of 
equity  will  not  and  cannot  interfere  to  restrain  its  breach.  'J'here 
1  Eq.— 24. 


370  EEPAEATION    AND    PEEVENTION    OF    TOETS.  (Part    1 

was,  however,  other  consideration  than  the  agreement  by  appellant 
not  to  publish.  Certain  papers  which  appellant  evidently  deemed  of 
some  value  were  delivered  to  him  as  a  part  of  the  consideration  for 
the  promise.  The  promise  not  to  publish,  apparently  therefore,  was 
based  on  a  valuable  consideration  to  appellant.  Whether  or  not, 
when  the  evidence  is  presented,  the  contract  will  be  deemed  one  the 
violation  of  which  should  be  restrained,  is  not  now  the  question.  .  , 
It  is  further  argued  that  equity  has  no  jurisdiction  to  enjoin  a  libel 
and  that  the  real  scope  of  the  bill  is  "to  enjoin  the  publication  and 
circulation  of  what  is  claimed  to  be  a  libel."  Much  space  is  given  by 
appellant's  counsel  to  discussion  of  the  liberty  of  the  press  and  to  de- 
cisions in  various  jurisdictions  to  the  effect  that  a  "court  of  chancery 
will  not  restrain  the  publication  of  a  libel  because  it  is  a  libel."  Pru- 
dential Life  Ins.  Co.  v.  Knott,  10  L.  R.  Ch.  App.  142.  In  the  present 
case  it  is  claimed  in  behalf  of  appellee  that  the  injunction  in  this  case 
does  not  merely  restrain  the  publication  of  a  libel,  as  to  which  there  is 
an  adequate  remedy  at  law,  but  that  the  fact  that  the  publications  com- 
plained of  are  alleged  to  be  libelous  is  but  an  incident ;  that  the  juris- 
diction of  equity  invoked  in  the  case  rests  upon  other  and  unquestioned 
grounds.  If  a  libelous  publication  is  in  violation  of  a  valid  contract, 
if  it  is  in  pursuance  of  a  wrongful  conspiracy  to  destroy  property 
rights  and  injure  the  business  of  appellee,  if  the  parties  issuing  the 
libelous  publication  are  insolvent  and  no  remedy  at  law  exists,  if  it 
is  inflicting  irreparable  injury  the  extent  of  which  cannot  be  definitely 
ascertained  and  for  which  there  is  no  adequately  remedy  at  law,  if 
the  bill  shows  that  not  only  by  publications,  but  by  letters  to  appellee's 
agents  and  employees,  appellant  is  interfering  with  appellee's  business, 
is  seeking  to  cause  policy  holders  to  lapse  their  policies  and  to  cause 
its  business  to  be  so  far  ruined  as  to  throw  it  into  the  hands  of  a 
receiver,  and  all  this  wrongfully  and  with  malicious  purpose,  it  is 
difficult  to  see  why  equity  should  withhold  its  preventive  authority. 
In  Barnes  v.  Chicago  Typographical  Union,  232  111.  424,  429,  an  in- 
junction was  granted,  in  which,  among  other  things,  the  said  union 
was  restrained  "from  sending  any  circular  or  other  communications 
to  customers  or  other  persons  who  might  deal  or  transact  business 
with  said  complainants  or  either  of  them  for  the  purpose  of  dissuading 
such  person  from  so  doing."  The  court  said:  "The  union  published 
weekly  what  was  called  a  directory  of  union  printing  offices  of  Chicago 


Ch.    3)  DEFAMATION PRIVACY.  3f71 

containing  the  names  of  offices  where  the  demands  of  the  imion  were 
submitted  to  and  a  hst  of  offices  on  strike,  in  which  latter  Hst  were 
pubhshed  the  names  of  complainants.  The  purpose  of  this  directors- 
was  to  induce  people  not  to  deal  with  the  complainants  and  to  com- 
pel employes  to  leave  their  service."  In  that  case  it  was  urged  on  the 
part  of  the  appellants  as  ground  for  demurrer  that  the  relief  prayed 
for  would  deprive  the  defendants  of  rights  secured  to  them  by  article 
11,  section  4  of  the  Constitution,  which  provides  that  "Every  person 
may  freely  speak,  write  and  publish  on  all  subjects,  being  responsible 
for  the  abuse  of  that  liberty."  The  injunction  was,  however,  affirm- 
ed.    ..     . 

It  is  doubtless  true,  as  stated  in  Covell  v.  Chadwick,  153  Mass.  263, 
cited  by  appellant's  counsel,  that  "so  far  as  the  bill  alleges  libel  by  the 
defendant  on  the  plaintifif,  unless  he  can  show  that  they  are  somewhat 
more  than  mere  false  representations  as  to  the  character  or  reputation 
of  his  property  or  as  to  his  title  thereto,  he  is  not  entitled  to  a  remedy 
by  injunction."  In  the  case  at  bar  the  publications  are,  according  to 
the  bill,  more  than  mere  libels,  and  where,  as  here,  the  bill  distinctly 
avers  essential  facts  forming  the  basis  of  the  prayer  for  relief  so  as 
clearly  to  apprise  the  appellant  of  what  he  has  to  meet,  it  is  not  nec- 
cessary  than  it  contain  the  evidence  or  recite  the  circumstances  in 
detail  which  would  support  its  general  statement.  The  present  bill 
is  particularly  full  in  this  respect.  It  clearly  shows  an  irreparable 
damage  which  would  not  be  adequately  compensated  by  action  at 
law.  The  injunction  does  not  attempt  to  restrain  a  mere  libel.  It 
restrains  wilful,  malicious  and  irreparable  injury  to  appellee's  property 
rights,  for  which  the  bill  shows  there  is  no  other  adequate  relief. 

Finding  no  error  in  the  record  the  interlocutory  order  granting  the 
injunction  will  be  affirmed. 

Affirmed. 


MUNDRN  V.  HARRIvS. 
(Court  of  Appeals  of   Alissouri,   1910,   153   Mo.   App.   6.'',2,   IM  S.   W.    1070.) 

Ellison,  J.     This  action  is  stated  in  a  petition  with  two  counts, 
one  for  damages  for  disturbing  plaintiff's  privacy  by  i)ublishing  his 


372f  REPARATION    AND    PREVENTION    OE    TORTS.  (Part    1 

picture  without  his  consent ;  and  the  other  for  hhel  in  pubhshing  the 
picture  along  with  false  statements  attributed  to  plaintiff.  In  each 
count  punitive  damages  were  asked,  but  no  special  damages  were 
alleged.  Defendants  demurred  to  the  petition  as  not  stating  a  cause  of 
action.  The  demurrer  was  sustained,  and  plaintiff  refusing  to  amend, 
judgment  was  rendered  against  him  and  he  appealed. 

Plaintiff  is  an  infant  five  years  old  and  the  action  was  brought 
through  a  "next  friend"  as  required  by  statute.  The  facts  stated  in 
the  first  count  of  the  petition  are  that  defendants,  being  jewelry 
merchants  in  Kansas  City,  invaded  plaintiff's  right  of  privacy  by  will- 
fully and  maliciously  using,  publishing  and  circulating  his  picture  for 
advertising  their  business  of  selling  merchandise;  thereby  destroying 
his  privacy  and  humiliating,  annoying  and  disgracing  him  and  ex- 
posing him  to  public  contempt. 

In  the  second  count  the  facts,  after  certain  preliminary  allegations, 
are  stated  to  be  that:  "defendants  did  wrongfully  and  maliciously 
compose,  print  and  publish  and  cause  to  be  composed,  printed  and 
published,  of  and  concerning  plaintiff,  together  with  his  photograph, 
the  following  false,  defamatory,  scandalous  and  malicious  libel  mean- 
ing thereby,  and  so  understood  by  persons  who  saw  the  same,  to  im- 
pute to  plaintiff  a  falsehood  and  attributing  to  plaintiff  in  said  publi- 
cation, a  statement  which  was  false  and  malicious,  to-wnt :  'Papa  is 
going  to  buy  mamma  an  Elgin  watch  for  a  present,  and  some  one  (I 
musn't  tell  who)  is  going  to  buy  my  big  sister  a  diamond  ring.     So 

don't  you  think  you  ought  to  buy  me  something? 
The  payments  are  so  easy,  you'll  never  miss  the 
money  if  you  get  it  of  Harris-Goar  Co.,  1207 
Grand  Ave.,  Kansas  City,  Mo.  Gifts  for  Every- 
body, Everywhere  in  their  Free  Catalogue.' " 
•  The  upshot  of  defendants'  position  in  support  of  their  demurrer 
to  the  first  count,  is  that  there  is  no  right  of  privacy  of  which  the  law 
will  take  notice ;  or,  stated  differently,  their  argument  is  that  the  law 
does  not  afford  redress  for  an  invasion  by  one  person  of  another's 
privacy  unless  it  is  accompanied  by  some  injury  to  his  property  or 
interference  therewith;  and  that  the  mere  printing  and  publishing 
one's  picture  does  not  and  cannot  affect  his  property.  The  cases 
principally  rehed  upon  by  defendants  are  those  of  Roberson  v.  Ro- 
chester Folding  Box  Co.,  171  N.  Y.  538;  Henry  v.  Cherry  &  Webb. 


Picture 

of 

Plaintiff 


Gh.    3)  DEFAMATIOX PBIVACY.  373 

R.  I.  (73  Atl.  97  )  ;  and  Atkinson  v.  Doherty,  121 


Mich,  372 ;  in  the  first  of  which,  in  the  course  of  an  interesting  opinion 
concurred  in  by  a  majority  of  the  court,  is  found  a  course  of  reasoning 
which  denies  that  a  right  of  privacy  exists  which  can  be  protected  by 
a  court  of  equity.  That  case  was  a  bill  in  equity  to  enjoin  a  mercantile 
firm  from  publishing  a  young  woman's  picture  as  an  attraction  to  an 
accompanying  advertisement  of  a  certain  brand  of  flour.  The  court 
in  denying  the  right  of  equity  to  protect  a  person  thus  embarrassed, 
shows  its  unfriendliness  to  the  claim  in  the  following  language:  "The 
so-called  right  of  privacy  is,  as  the  phrase  suggests,  founded  upon 
the  claim  that  a  man  has  the  right  to  pass  through  this  world,  if  he 
wills,  without  having  his  picture  published,  his  business  enterprises 
discussed,  his  successful  experiments  written  up  for  the  benefit  of 
others,  or  his  eccentricities  commented  upon  either  in  handbills,  circu- 
lars, catalogues,  periodicals  or  newspapers,  and,  necessarily,  that  the 
things  which  may  not  be  written  and  published  of  him  must  not  be 
spoken  of  him  by  his  neighbors,  whether  the  comment  be  favorable  or 
otherwise." 

The  conclusion  of  the  court  is  based  much  upon  the  statement  that 
the  case  there  presented  was  without  precedent,  and,  while  admitting 
that  equity,  in  the  beginning  and  early  part  of  its  administration,  was 
made  up  of  growth,  case  by  case,  which  was  without  precedent,  being 
based  merely  upon  the  conscience  of  the  chancellor,  yet  there  came 
a  time  when  its  growth  ceased  and  what  was  formerly  the  personal 
conscience  of  the  chancellor,  became  a  "juridical  conscience,"  which 
would  only  permit  relief  to  be  administered  in  cases  where  it  had 
been  administered  before,  save  in  those  instances  "where  there  can 
be  found  a  clear  and  unequivocal  principle  of  the  common  law  which 
either  directly  or  mediately  governs  it,  or  which  by  analogy  or  parity 
of  reasoning  ought  to  govern  it."  With  such  consideration  as  a 
guiding  thought,  the  court  refused  relief  because  there  was  no  prec- 
edent for  it  and  it  did  not  appear  to  be  within  any  recognized  legal 
principle.  This  view  is  approved  in  Henry  v.  Cherry  &  Webb,  which 
was  an  action  at  law  in  the  nature  of  trespass  for  damages  for  an  in- 
vasion of  the  right  of  privacy  by  using  and  publishing  the  plaintitT's 
picture  as  an  advertisement  in  aid  of  the  sale  of  merchandise.  In 
such  respect  it  was  like  Roberson  v.  Rochester  Folding  P.ox  Co. 
Though  one  was  an  application  in  equity  for  restraint  and  the  other 


374  REPARATION    AND    PREVENTION   OF    TORTS.  (Part    1 

was  for  damgaes  at  law,  yet  as  each  by  similar  reasoning,  denied  that 
there  was  any  such  right,  both  denied  any  remedy. 

The  remaining  case  (Atkinson  v.  Doherty  &  Co.)  was  where  after 
the  death  of  John  Atkinson,  a  celebrated  lawyer,  the  defendants,  who 
were  manufacturers  of  cigars,  named  a  brand  of  their  make  the  "John 
Atkinson  Cigar,"  and  placed  the  name,  together  with  his  picture,  as 
a  label  on  cigar  boxes.  His  widow  sought  to  restrain  such  acts  by  in- 
junction. Her  right  was  denied ;  and  again  the  reasoning  in  Roberson 
V.  Rochester  Folding  Box  Co.  was  approved.  But  it  will  be  observed 
that  while  the  Roberson  case  involved  the  right  of  privacy  of  the 
plaintiff's  own  picture,  the  Atkinson  case,  like  that  of  Schuyler  v. 
Curtis,  147  N.  Y.  434,  sought  to  protect  the  right  of  privacy  to  the 
name  of  a  deceased  relative,  a  case  which  did  not  call  for  much  that 
was  said  in  the  course  of  the  opinion,  concerning  the  general  right  of 
privacy,  except  by  way  of  argument  or  illustration;  and  what  was 
said  beyond  the  right  of  privacy  which  may  be  claimed  by  relatives 
of  a  deceased,  must  be  regarded  as  dictum.  The  point  of  agreement 
in  these  cases  is  that  no  relief  can  be  had  by  way  of  protecting  a  right 
of  privacy,  for  the  reason  that  it  was  not  a  right  of  property  and  did 
not  fall  within  any  legal  principle. 

But  courts  which  refuse  assent  to  those  decisions  assert  that  it  is 
a  right  of  property  and  that  there  is  such  legal  principle,  old  and  well 
recognized ;  though  they  concede  the  case  is  new  in  its  facts.  The  main 
ground  for  division  of  opinion  in  these  courts  is  at  last  found  to  be 
based  on  those  conflicting  assertions.  So  therefore  it  appears  that 
if  it  can  be  established  that  a  person  has  a  property  right  in  his  picture, 
those  who  now  deny  the  existence  of  a  legal  right  of  privacy  would 
freely  concede  a  remedy  to  restrain  its  invasion,  for  all  agree  that 
equity  will  forbid  an  interference  with  one's  right  of  property. 

Property  is  not  necessarily  a  taxable  thing  any  more  than  it  is 
always  a  tangible  thing.  It  may  consist  of  things  incorporeal,  and 
things  incorporeal  may  consist  of  rights  common  to  every  man.  One 
is  not  compelled  to  show  that  he  used,  or  intended  to  use,  any  right 
which  he  has  in  order  to  determine  whether  it  is  a  valuable  right  of 
which  he  cannot  be  deprived  and  in  which  the  law  will  protect  him.  The 
privilege  and  capacity  to  excercise  a  right,  though  unexercised,  is  a 
thing  of  value — is  property — of  which  one  cannot  be  despoiled.  If 
a  man  has  a  right  to  his  own  image  as  made  to  appear  by  his  picture, 


Cll.    3)  DEFAMATIOX PRIVACY.  375 

it  cannot  be  appropriated  by  another  against  his  consent.  It  must 
strike  the  most  obtuse  that  a  claim  of  excUisive  right  to  one's  picture 
is  a  just  claim.  Judge  Gray,  in  his  dissenting  opinion  in  Roberson  v. 
Rochester  Folding  Box  Co.,  supra,  said,  at  page  563  of  the  report,  that : 
"The  proposition  is,  to  me,  an  inconceivable  one  that  these  defendants 
may,  unathorizedly,  use  the  likeness  of  this  young  woman  upon  their 
advertisement,  as  a  method  of  attracting  widespread  public  attention 
to  their  wares,  and  that  she  must  submit  to  the  mortifying  notoriety, 
without  right  to  invoke  the  exercise  of  the  preventive  power  of  a  court 
of  equity." 

One  may  have  peculiarity  of  appearance,  and  if  it  is  to  be  made  a 
matter  of  merchandise,  why  should  it  not  be  for  his  benefit?  It  is  a 
right  which  he  may  wish  to  exercise  for  his  ozvn  profit  and  why  may 
he  not  restrain  another  who  is  using  it  for  gain?  If  there  is  value  in 
it,  sufficient  to  excite  the  cupidity  of  another,  why  is  it  not  the  property 
of  him  who  gives  it  the  value  and  from  whom  the  value  springs? 

It  may  be  admitted  that  the  right  of  privacy  is  an  intangible  right; 
but  so  are  num.erous  others  which  no  one  would  think  of  denying  to 
be  legal  rights  which  would  be  protected  by  the  courts.  It  is  spoken 
of  as  a  new  right,  when,  in  fact,  it  is  an  old  right  with  a  new  name. 
Life,  liberty  and  the  pursuit  of  happiness,  are  rights  of  all  men.  The 
right  to  life  includes  the  pursuit  of  happiness,  for  it  is  well  said  that 
the  right  to  life  includes  the  right  to  enjoy  life.  Every  one  has  the 
privilege  of  following  that  mode  of  life,  if  it  will  not  interfere  with 
others,  which  will  bring  to  him  the  most  contentment  and  happiness. 
He  may  adopt  that  of  privacy,  or,  if  he  likes,  of  entire  seclusion.  The 
face  of  the  majority  opinion  in  Roberson  v.  Rochester  Folding  Box 
Co.,  supra,  while  denominating  the  right  of  privacy  as  "a  phrase"  and 
"a  so-called  right,"  yet  concedes  that  it  is  a  something  which  to  dis- 
turb is  an  "impertinence."  The  court  recognizes  the  right,  but,  as  has 
been  already  said,  not  considering  it  a  property  right,  refused  it  the 
protection  of  the  restraining  power  of  a  court  of  equity;  and  thereby 
confined  the  beneficent  power  of  equity  within  too  narrow  bounds — 
bounds  so  limited  as  will  permit  the  doing  of  acts  which  shgck  the 
moral  sense. 

We  therefore  conclude  that  one  has  an  exclusive  right  to  his  picture, 
on  the  score  of  its  being  a  property  right  of  material  profit.  We  also 
consider  it  to  be  a  properly  right  of  value  in  that  it  is  one  of  the  modes 


3761  REPARATION    AND    PREVENTION   OF    TORTS.  (Part    1 

of  securing  to  a  person  the  enjoyment  of  life  and  the  exercise  of 
Hberty;  and  that  novelty  of  the  claim  is  no  objection  to  rehef.  If  this 
right  is,  in  either  respect,  invaded,  he  may  have  his  remedy,  either  by 
restraint  in  equity,  or  damages  in  an  action  at  law.  If  there  are  special 
damages  they  may  be  stated  and  recovered;  but  such  character  of 
damages  is  not  necessary  to  the  action,  since  general  damages  may 
be  recovered  without  a  showing  of  specific  loss ;  and  if  the  element  of 
malice  appears,  as  that  term  is  known  to  the  law,  exemplary  damages 
may  be  recovered. 

It  ought,  however,  to  be  added  that  though  a  picture  is  property, 
its  owner,  of  course,  may  consent  to  its  being  used  by  others.  This 
consent  may  be  express,  or  it  may  be  shown  by  acts  which  would  be 
inconsistent  with  the  claim  of  exclusive  use,  as  if  one  should  become 
a  man  engaged  in  public  affairs,  or  who  by  a  course  of  conduct,  has 
excited  public  interest.  And  it  ought  also  to  be  understood  that  the 
right  of  privacy  does  not  extend  so  far  as  to  subvert  those  rights  which 
spring  from  social  conditions,  including  business  relations.  By  be- 
coming a  member  of  society  one  surrenders  those  natural  rights  which 
are  incompatible  with  social  conditions.  In  the  nature  of  things,  man 
in  the  social  organization  must  be  referred  to  and  spoken  of  by  others, 
and  this  may  be  done  freely  so  long  as  it  is  free  from  slander.  But 
the  difference  between  that  right  and  a  claim  to  take  another's  picture 
against  his  consent,  or  to  make  merchandise  of  it,  or  to  exhibit  it,  is 
too  wide  for  hesitation  in  condemning  the  act  and  granting  proper 

relief. 

The  foregoing  views  find  ample  support  in  thoroughly  considered 
cases  decided  in  recent  years.  (Pavesich  v.  New  Eng.  Life  Ins.  Co., 
122  Ga.  190;  Vanderbilt  v.  Mitchell,  71  N.  J.  Eq.  632;  Edison  v. 
Edison  Mfg.  Co.,  IZ  N.  J.  Eq.  136;  Foster-Milburn  Co.  v.  Chinn, 
134  Ky.  424.)  These  cases  are  supported  by  the  dissenting  opinion  of 
Judge  Gray,  waiting  for  the  minority  of  the  court,  in  Roberson  v. 
Rochester  Folding  Box  Co.,  supra.  And  we  think  the  principle  they 
announce  is  practically  conceded  in  vSchuyler  v.  Curtis;  147  N.  Y.  434, 
hereinbefore  cited.  Several  of  these  cases  make  acknowledgment  to 
a  very  able  article  in  4  Harvard  Law  Review,   193. 

In  the  Schuyler  case  a  near  relative  of  the  deceased,  Mrs.  Schuyler, 
sought  to  enjoin  admirers  of  her  many  virtues  and  good  deeds  from 
placing  her  statue  in  a  public  place.     It  was  held  that  relief  could  not 


Ch.    3)  DEFAMATION — PRIVACY.  oYY 

be  had  on  the  ground  of  the  deceased's  right  of  privacy,  as  that  right 
necessarily  died  with  her.  And  that  so  long  as  no  aspersion  was  in- 
tended to  be  cast  upon  the  dead ;  so  long  as  the  dead  were  intended  to 
to  be  honored  in  appropriate  manner  and  not  slurred  or  defamed  in 
such  way  as  to  outrage  the  feelings  and  sensibilities  of  surviving  rela- 
tives, there  could  be  no  cause  of  complaint  by  them.  That  the  alleged 
injury,  in  that  case,  to  the  sensibility  of  relatives  was  fanciful  rather 
than  real,  and  it  was  therefore  not  a  subject  for  interference  by  the 
courts. 

We  will  now  consider  whether  a  cause  of  action  for  libel  is  stated 
in  the  second  count.  Our  statute  (sec.  4818,  R.  S.  1909)  declares  a 
libel  upon  a  person  to  be  a  thing  "made  public  by  any  printing,  writing, 
sign,  picture,  representation  or  effigy  tending  to  provoke  him  to  wrath, 
or  expose  him  to  public  hatred,  contempt  or  ridicule.  .  .  ."  The 
printed  matter  set  forth  in  the  petition  is  the  utterance  of  falsehoods, 
of  a  character  tending  to  incite  ridicule. 

It  was  argued  that  the  printed  matter  published  consisted  of  pur- 
ported utterances  of  plaintifif  which  were  falsehoods  and  that  to  charge 
one  in  writing  with  being  a  falsifier  was  libelous  per  se.  We  are  not 
inclined  to  base  our  decision  on  that  ground,  since  we  believe  the 
statement  purporting  to  have  been  made  by  plaintiff  was  palpably  not 
intended  to  be  understood,  and  would  not  be  taken  to  be  a  false 
statement  of  fact,  but  rather  as  an  imaginary  statement  attributed  to 
him  by  defendants  for  the  purposes  of  advertisement  of  their  goods. 

But  it  seems  to  us  clear  that  considering  the  publication  of  the 
picture  and  the  printed  matter,  as  a  whole,  it  would  expose  plaintifif 
to  ridicule  and  contempt  unless  his  age  (to  which  we  will  presently 
refer)  would  exempt  him.  It  is  a  public  statement  of  what  plaintiff 
had  said  about  the  private  affairs  of  his  father  in  relation  to  a  present 
for  his  mother,  and  is  a  reference  to  the  private  social  affairs  of  his 
sister.  Connecting  these  statements  with  his  picture  and  using  them 
as  an  advertising  aid  to  business  was  necessarily  bound  to  cause  him  to 
undergo  the  vexation  and  humiliation  of  ridicule  though  it  was  not 
believed  he  had  really  made  the  statements.  It  does  not  require  any 
imagination  to  realize  what  a  suggestive  handle  it  would  give  to  the 
teasing  propensities  of  his  fellows,  to  be  used  l)y  tluin  without  stint 
and  without  regard  to  his  distress.  What  right  had  these  defendants 
to  thus  wrong  him?    It  would  be  a  matter  of  regret  if  tiie  law  did  not 


3781  REPARATION    AND    PREVENTION   OF   TORTS.  (Part    1 

alford  him  a  remedy  and  such  an  one  as  would  probably  prevent 
repetition.  The  extreme  to  which  Judge  Parker  went  on  the  right  of 
privacy  in  Roberson  v.  Rochester  Folding  Box  Co.  did  not  lead  him 
to  say  that  a  party  was  altogether  without  remedy.  At  pages  556  and 
557  of  the  report  he  concedes  that  libel  could  be  maintained. 

But  we  are  not  left  to  a  mere  concession.  The  case  of  Pavesich  v. 
New  Eng.  Life  Ins.  Co.,  supra,  like  that  at  bar,  was  instituted  by 
petition  in  two  counts,  one  for  damages  for  an  invasion  of  the  right 
of  privacy  by  publishing  the  plaintiff's  picture  in  connection  with  an 
advertisement  wherein  he  was  said  to  have  uttered  language  in  ad- 
vancement of  the  business  advertised,  and  the  other  for  libel.  The 
opinion  of  Justice  Cobb  is  not  only  an  able  and  exhaustive  consid- 
eration of  the  remedy  in  equity  for  restraint  and  at  law  in  damages, 
for  an  invasion  of  the  right  of  privacy,  but  it  includes  a  distinct  and 
separate  affirmation  of  the  right  to  maintain  libel ;  and  that  in  a  case 
of  the  kind  we  have  now  before  us  the  matter  was  such  that  if  found 
by  a  jury  to  be  untrue,  would  have  been  libelous  per  se  and  no  special 
damages  need  be  alleged.  So  it  was  determined  by  the  Supreme  Court 
of  the  United  States,  that  the  publication  of  a  woman's  picture  in  con- 
nection with  an  advertisement  of  whiskey  was  a  libel  which  might  work 
serious  harm  to  her  standing  with  some  portions  of  the  community. 
(Peck  V.  Tribune  Co.,  214  U.  S.  185,  overruling  the  same  case  in  154 
Fed.  Rep.  330.) 

The  plaintiff  is  an  infant  only  five  years  old,  which  facts  brings  a 
subject  into  the  case  deserving  serious  consideration.  Can  an  infant 
be  slandered  or  libeled? 

The  question  is  easily  answered  in  the  affirmative,  yet  the  answer 
involves  the  further  consideration  whether  it  should  not  be  qualified 
by  way  of  exception.  It  seems  well  settled  that  an  infant  is  liable  for 
his  torts,  among  which  are  libel  and  slander.  (Fears  v.  Riley,  148 
Mo.  49;  Jennings  v.  Rundall,  8  T.  R.  335;  Starkie  on  Slander,  sec. 
347.) 

But  that  statement  cannot  be  accepted  broadly.  For  malice  and 
evil  intent  are  necessary  ingredients  in  these  torts  and  therefore  some- 
times the  age  of  the  infant  may  become  of  the  highest  importance  in 
determining  his  liability.  If  he  be  of  such  immature  and  tender  years 
that  he  cannot  form  malice  or  entertain  conscious  evil  intention,  he 
cannot  be  guilty  of  either  libel  or  slander.     It  would  be  a  ridiculous 


Ob.    3)  DEFAMATION — PRIVACY.  379 

statement  to  say  that  a  prattling  child,  two  or  three  years  old,  could 
slander  or  libel  another.  It  would  be  almost,  if  not  quite,  as  ridiculous 
to  say  that  an  infant  twenty  years  old  could  not  entertain  malice  so  as 
to  be  guilty  of  these  wrongs.  Where,  then,  is  the  line  to  be  drawn? 
We  think  the  rule  in  criminal  cases  applies,  for  they  and  libel  and 
slander  have  malice  for  a  common  ingredient.  Doli  incapax  finds 
place  in  the  consideration  of  the  question.  An  infant  is  not  liable  to 
an  action  of  slander  "until  he  is  doli  capax  'capable  of  mischief — 
which,  presumptively  is  not  until  he  is  fourteen  years  of  age."  (Tyler 
on  Infancy,  sec.  127;  Newell  on  Slander  and  Libel,  370;  Odgers,  Libel 
and  Slander  (star  page)  353.)  The  rule  at  common  law,  in  force  in 
this  state  (State  v.  Tice,  90  Mo.  112)  is  that  a  child  under  seven  years 
of  age  is  doli  incapax — incapable  of  committing  a  crime ;  and  between 
that  age  and  fourteen  he  may  or  may  not  be :  over  fourteen  he  is  as 
an  adult.  And  so  if  he  is  under  seven  he  should  be  considered  in- 
capable of  libel  or.  slander.  These  wrongs  are  indictable  in  this,  and 
many  other  countries,  as  state  offenses,  and  it  would  be  an  inconsistency 
to  be  avoided,  if  possible,  to  say,  as  a  matter  of  law,  in  one  forum,  that 
the  child  could  be  capable  of  the  act,  and  in  the  other  that  he  could 
not. 

It  is  not  inconsistent  with,  nor  an  objection  to,  this  view  that  a 
child  of  tender  years  may  commit  a  trespass  and  be  civilly  liable  for 
damages.  Doli  capax  cuts  no  figure  in  that  instance  for  a  trespass 
does  not  necessarily  imply  malice,  or  evil  intention.  So  a  boy  under 
seven  years,  was  held  liable  for  breaking  down  shrubbery  and  de- 
stroying flowers.  (Hutching  v.  Engle,  17  Wis.  237.)  And  Judge 
Cowen,  in  Hartfield  v.  Roper,  21  Wend.  1.  c  .621,  cites  a  case  where 
an  infant  only  four  years  old  was  stated  to  be  liable  in  trespass.  But 
in  such  extreme  instances  it  is  conceded  that  punitive  damages  could 
not  be  had ;  this,  on  the  ground  that  wantonness  or  malice  could  not 
be  imputed. 

Though  in  some  degree  allied  to  the  point  in  discussion,  it  is  not 
necessary  for  us  to  say  at  what  tender  age,  arbitrarily  fixed,  an  infant 
would  not  be  liable  for  fraud,  but  manifestly,  there  is  a  period  of  im- 
maturity when  he  could  not  be  guilty  of  wrongful  deception.  Clearly 
he  should  be  of  such  years  of  discretion  that  such  a  wrong  could  be 
fairly  charged  to  him.  In  Watts  v.  Cresswell,  3  Eq.  Cas.  Abr.  515 
(9  Vin.  Abr.  415)  it  was  said  that  "if  an  infant  is  old  enough  to  con- 


380  EEPAEATION    AND    PREVENTION    OF    TORTS.  (Part    1 

trive  and  carry  out  a  fraud,  he  ought  to  make  satisfaction  for  it." 
Which  is  but  another  mode  of  saying  that  unless  he  has  sufficient  years 
of  discretion  to  invent  and  perpetrate  a  fraud,  he  could  not  be  held  to 
have  committed  one. 

Though,  as  thus  shown,  a  child  of  tender  years  be  incapable  of 
uttering  a  slander  or  publishing  a  libel,  it  does  not  follow  that  he  may 
not  be  slandered  or  libeled.  The  two  positions  are  not  dependable 
upon  one  another.  In  some  instances  and  in  some  stages  of  infancy, 
opprobrium  could  not  affect  a  child.  Much  would  depend  upon  the 
nature  of  the  offensive  imputation.  If  an  infant  at  the  breast  of  his 
mother  was  charged  with  being  a  thief,  it  probably  would  not  be 
slander,  since  it  is  not  possible  for  him  to  commit  larceny,  either  in 
point  of  fact  or  point  of  law.  But  if  such  infant  should  be  charged 
with  being  afflicted  with  a  loathsome  and  permanent  disease,  or  with 
a  private  and  humiliating  physical  malformation,  these  are  charges 
which  could  be  true  and  furthermore,  they  are  species  of  defamation 
which  would  grow  and  the  harmful  effect  of  which  would  increase 
with  the  passing  of  time,  and  we  can  see  no  reason  why  it  would  not 
be  slander.  It  has  been  decided  that  the  fact  that  an  infant  is  too  young 
for  criminal  responsibility  will  not  bar  him  of  his  action  against  his 
traducer.  (Stewart  v.  Howe,  17  111.  71.)  By  the  statute  of  Ihinois  the 
common  law  criminal  irresponsibility  for  crime  was  raised  from  seven 
to  ten  years  in  cases  of  larceny,  and  a  girl  of  age  between  nine  and  ten 
was  charged  with  being  "a  smart  little  thief."  The  defendant  sought 
to  escape  liability  on  the  ground  that  she  could  not  commit  the  crime  of 
theft.  The  judge  delivering  the  opinion  became  heated  and  indignant 
and  characterized  the  defendant  as  a  "reputational  infanticide,"  and 
said  that  he  "would  sooner  see  the  action  abolished  than  to  read  out  in- 
fancy from  the  pale  of  its  protection." 

The  foregoing  is  sufficient  for  an  understanding  of  our  views  in 
relation  to  plaintiff's  liability  to  be  wronged,  or,  if  it  may  be  so  ex- 
pressed, his  capacity  to  be  injured.  In  our  opinion,  notwithstanding 
he  was  but  five  years  old,  he  was  liable  to  the  ridicule  of  his  fellows. 
His  susceptibility  to  vexation  and  humiliation  was  at  hand  and  his 
appreciation  of  the  outrage  committed  by  defendants  would  grow  in 
greater  proportion  than  would  the  failure  of  memory  in  his  associates. 

It  is  well  enough  to  add  that  a  trial  may  disclose  that  plaintiff  was 
less  than  five  years  old;  and  so  much  less  as  not  to  be  the  subject  of 


(^h.    3)         DOMESTIC,  SOCIAL   AND    POLITICAL    RELATIONS.  381 

ridicule,  or  contempt,  or  public  hatred  by  any  appreciable  number  of 
the  community  (Peck  v.  Tribune  Co.,  supra).  If  so,  then,  under  the 
views  we  have  expressed,  he  was  not  libelled.  It  may  be  that  his  years 
and  his  intelligence  were  such  that  to  be  subject  of  ridicule,  contempt 
or  hatred  would  be  a  matter  over  which  persons  would  differ,  in  which 
event  the  question  could  not  be  withdrawn  from  a  jury,  but  would  be 
for  their  consideration  as  to  the  law  and  the  fact,  as  is  proper  in  libel. 
The  result  of  the  foregoing  consideration  is  to  reverse  the  judgmei^t 
and  remand  the  cause  for  trial.    All  concur. 


SECTION  XL    INTERFERENCE  WITH  DOMESTIC,  SOCIAL 
AND   POLITICAL   RELATIONS 


EX  PARTE  AVARFIELD. 

(Texas    Court    of    Criminal    Appeals,    1899,    40   Tex.    Crini.    413.) 

Henderson,  J.  This  is  an  original  application  for  a  writ  of  habeas 
corpus,  which  grew  out  of  contempt  proceedings  in  the  Forty-fourth 
Judicial  District  Court  of  Dallas  County.  It  appears  that  Will  R. 
Morris,  as  plaintiff,  brought  a  suit  against  J.  B.  Warfield,  as  defendant, 
before  Judge  Richard  Morgan,  in  the  Forty-fourih  Judicial  District 
Court  of  Texas,  for  $100,000.  The  petition  alleges  a  number  of  acts 
on  the  part  of  J.  B.  Warfield,  the  defendant  in  that  suit,  interfering 
with  marital  relations  existing  between  Will  R.  Morris  and  his  wife, 
Vivia  Morris,  said  acts  causing  a  partial  alienation  of  the  affections 
of  his  said  wife;  and  further  suggesting  that  the  course  of  conduct  of 
said  Warfield  towards  the  wife  of  .said  Morris,  if  permitted  to  con- 
tinue unrestrained,  would  likely  culminate  in  the  total  alienation  of 
the  affections  of  his  said  wife,  and  the  destruction  of  the  marital  rela- 
tions existing  between  them.  And  said  Morris  asked  for  a  writ  of  in- 
junction restraining  said  Warfield  from  visiting  or  associating  wiih 
plaintiff's  said  wife,  or  going  to  or  near  her  at  a  certain  house,  No.  129 
Marion  Street,  or  any  other  house  or  place  in  the  city  of  Dallas,  or 


382'  EEPARATTOlSr    AND    PREVENTION  OF  TORTS.  (Part    1 

State  of  Texas,  where  his  said  wife  might  be,  and  that  he  be  restrained 
from  writing  or  speaking  to  her,  or  in  any  manner,  either  directly  or 
indirectly,  communicating  with  her,  by  word,  letter,  writing,  sign,  or 
symbol,  and  also  asking  that  his  agents  and  employes  be  restrained 
from  the  like,  etc. ;  and  that  said  Warfield  and  his  agents  and  servants 
be  restrained  from  interfering  with  plaintiff  in  his  peaceful  efforts  to 
seek,  talk,  write  or  communicate  with  his  said  wife,  etc.  The  writ  was 
granted  on  the  23d  of  February,  1899,  and  was  served  on  Warfield  on 
the  following  day,  the  24th  of  February.  On  the  9th  of  March  fol- 
lowing, plaintiff  sued  out  an  attachment  against  said  Warfield,  alleging 
that  he  had  violated  said  writ  of  injunction,  and  made  a  motion  for 
rule  against  him  for  contempt  for  a  violation  thereof.     .     .     . 

Now,  recurring  to  the  subject  matter  of  this  litigation,  as  set  forth 
in  plaintiff's  petition,  we  think  there  can  be  no  question  that  appellant 
sets  forth  a  cause  of  action  for  the  partial  alienation  of  his  wife's 
affections.  The  marital  relation  existing  between  these  parties  was  a 
civil  contract,  binding,  until  it  should  be  abrogated,  upon  both  of  the 

spouses.  "He  is  entitled  to  the  society  of  his  wife,  and  may  sue  for 
damages  any  person  enticing  her  away  from  him  ;  and,  whenever  a  wife 
is  not  justified  in  abandoning  her  husband,  he  who  knowingly  and  in- 
tentionally assists  her  in  thus  violating  her  duty  is  guilty  of  a  wrong 
for  which  an  action  will  lie."  See  2  Lawson,  Rights,  Rem.  and  Prac, 
sec.  714.  "It  is  legal  presumption  that  a  wife's  services  and  the  com- 
fort of  her  society  are  fully  equilavent  to  any  obligations  which  the 
law  imposes  upon  her  husband  because  of  the  marital  relation,  and 
her  obligation  to  render  family  service  is  coextensive  with  that  of 
her  husband  to  support  her  in  the  family."  Id.,  sec.  715;  Schouler, 
Dom.  Rel.,  sec.  41 ;  Bennett  v.  Smith,  21  Barb.,  439;  Barnes  v.  Allen, 
30  Barb.  663.  A  husband,  from  time  immemorial,  has  an  interest  in 
the  services  of  his  wife,  springing  from  the  marital  relation.  In  this 
State  suits  for  personal  injuries  to  her  must  be  maintained  by  the 
husband  predicated  upon  this  idea.  The  suit  here  was  brought  for 
damages  on  an  alleged  partial  alienation  of  the  affections  of  his  wife, 
and  it  was  averred  that,  on  account  of  the  past  conduct  of  the  defendant 
in  that  suit,  plaintiff  was  apprehensive,  and  had  just  grounds  to  fear, 
that,  by  a  continuance  thereof,  the  wife's  affections  would  be  entirely 
alienated.  There  would  consequently  be  a  breach  and  destruction  of 
the  matrimonial  contract  existing  between  the  parties,  by  which  plain- 


oil.    3)         DOMESTIC,  SOCIAL   AND    POLITICAL    RELATIONS.  383 

tiff  would  entirely  lose  the  affections  and  services  of  his  said  wife. 
These,  it  must  be  conceded,  were  of  a  peculiar  value  to  plaintiff ;  and 
it  would  seem  that,  if  the  court  had  the  power  to  maintain  this  suit 
for  damages  on  account  of  the  partial  alienation  of  the  affection  of 
his  said  wife,  he  would  have  a  right  to  invoke  the  restraining  power 
of  a  court  of  equity  to  prevent  the  utter  alienation  of  his  wife's  affec- 
tions and  the  utter  destruction  of  the  marital  agreement.    We  believe 
this  would  be  so  under  the  liberal  rules  of  equity,  as  now  practiced 
in  the  courts,  but  much  more  so  under  the  provisions  of  our  statute  on 
the  subject  of  injunctions.     Article  2989,  Revised  Statutes,  provides 
that  the  judges  of  the  district  courts  may  grant  writs  of  injunction  in 
the  following  cases:  "(1)   Where  it  shall  appear  that  the  party  ap- 
plying for  said  writ  is  entitled  to  the  relief  demanded,  and  such  relief 
or  any  part  thereof  requires  the  restraining  of  some  act  prejudicial  to 
the  appellant."    This  provision  shows  that  it  was  intended  to  be  broad- 
er than  the  ordinary  authority,  because,  in  the  third  subdivision  of  the 
act,  the  court  is  authorized  to  grant  the  writ  in  all  other  cases  where 
the  applicant  for  said  writ  may  show  himself  entitled  thereto  under 
the  principles  of  equity.    For  a  construction  of  these  provisions,  see  the 
able  opinion  of  Judge  Denman  of  the  Supreme  Court  in  Sumner  v. 
Crawford,  91  Texas,  129.     After  reciting  the  provision  of  the  statute, 
the  learned  judge  used  this  language:  "It  will  be  observed  that  the 
latter  portion  of  the  article  requires  the  case  to  be  brought  within  the 
rules  of  equity,  and  does  not  undertake  to  state  the  circumstances  en- 
titling the  applicant  to  the  writ,  and  therefore,  under  it,  it  must  ap- 
pear that  there  is  no  'adequate  remedy  at  law,'  as  that  term  has  always 
been  understood.     But  the  first  portion  of  the  article  does  state  what 
facts  will  justify  the  issuance  of  the  writ  thereunder,  and  does  not  re- 
quire that  there  shall  be  no  adequate  remedy  at  law."    And  we  would 
further  suggest  that  the  question  decided  in  said  case  is  very  much 
in  point  in  this  case,  as  showing  the  liberality  of  our  courts  in  granting 
writs  of  injunction.     The  court  below,  it  will  be  conceded,  had  juris- 
diction and  authority  to  maintain  the  suit,  and  it  can  not  be  seriously 
questioned  that  the  principal  object  of  the  suit  was  to  perserve  the 
marital  relations  existing  between  plaintiff  and  his  spouse,  and  to  con- 
serve, as  far  as  may  be,  and  rehabilitate,  her  affections  for  \hv  ])lainliff. 
It  was  claimed,  by  the  continued  conduct  and  interferences  of  tlie  de- 
fendant  in  that  suit,   that   the   iiitegrity   of    the   marital    relation    was 


384  EEPAKATION    AND    PEEVENTIOJST   OF    TORTS.  (Part    1 

threatened,  and,  if  his  course  of  conduct  was  suffered  to  continue, 
that  the  marital  relation  would  be  destroyed.  Among  other  things, 
it  was  alleged  that  said  defendant  exercised  an  undue  influence  over 
the  wife  of  plaintiff,  and,  if  sufTered  to  associate  with  her  and  speak 
and  talk  with  her,  and  visit  her,  it  was  very  likely  he  would  entirely 
corrupt  and  lead  her  astray,  and  therefore  the  power  of  the  court  was 
invoked  to  arrest  these  interferences,  and  defendant  was  enjoined 
from  speaking  or  talking  with  her,  or  visiting  the  house  where  she  was 
staying.  It  occurs  to  us,  if  the  suit  itself  was  maintainable,  that  the  acts 
complained  of  were  prejudicial  to  the  plaintiff;  indeed,  that,  by  their 
continuation,  the  real  object  of  the  suit  would  be  entirely  frustrated; 
and  that  the  court  consequently  had  the  power  and  authority  to  in- 
hibit said  defendant  from  interfering  with  plaintiff's  wife,  and  that 
this  was  no  interference  with  the  inalienable  rights  of  the  citizen  to  go 
where  he  pleased,  and  to  associate  with  whom  he  pleased,  and  to  pur- 
sue his  own  happiness  in  his  appointed  way,  provided  such  course 
of  conduct  did  not  interfere  with  another's  right.  "He  had  a  perfect 
right  to  so  use  his  own  as  not  to  abuse  another's."  Nor  is  there  any 
inconsistency,  when  thus  construed,  between  die  freedom  of  speech 
and  of  the  press  and  the  integrity  of  the  marital  relation.  The  law  is 
as  much  bound  to  protect  the  one  as  the  other,  and,  when  both  can  be 
construed  in  harmoney,  it  is  the  duty  of  the  courts  to  protect  both. 

It  has  been  said  that  applicant  was  not  shown  to  have  violated  the 
spirit  of  the  injunction,  inasmuch  as  no  conversation  was  shown  of  a 
character  calculated  to  persuade  or  lead  away  the  wife  of  the  plaintiff; 
but  his  conduct  was  certainly  in  violation  of  the  letter  of  said  injunc- 
tion, and  we  can  not  say  that  the  court  did  not  have  the  right  and 
authority  to  make  the  injunction  as  broad  as  it  did,  as,  under  the 
allegations  of  the  petition,  it  is  shown  that  defendant  was  not  to  be 
trusted  in  the  society  of  Mrs.  Morris,  or  to  speak  with  her. 

But,  even  if  it  be  conceded  that  the  act  of  the  court  in  this  regard 
is  of  doubtful  validity, — that  is,  that  it  may  or  may  not  be  void, — -still 
we  do  not  feel  inclined  to  interfere.  The  defendant  in  that  suit  had 
his  right  to  invoke  the  action  of  that  court  to  dissolve  that  injunction. 
He  did  not  do  so,  but  he  saw  fit  to  willfully  disregard  it,  and  he  now 
claims  before  this  court  that  the  same  was  absolutely  void,  and  that 
he  had  the  right  to  defy  it  and  set  it  at  naught.  It  occurs  to  us  that 
the  injunction  could  have  been  easily  obeyed,  without  infringing  upon 


Cll.    3)         DOMESTIC,  SOCIAL    AND    POLITICAL.    RELATIONS,  385 

any  of  the  fundamental  rights  of  the  appHcant.  We  accordingly  hold 
that  the  applicant  does  not  show  himself  entitled  to  he  relieved.  It  is 
therefore  ordered  that  he  be  remanded  to  the  custody  of  the  sheritT 
of  Dallas  County,  and  undergo  the  sentence  imposed  upon  him  by  the 
judge  of  the  Forty-fourth  Judicial  District  Court.  It  is  further  order- 
ed that  the  costs  incurred  in  this  court  be  taxed  against  the  applicant. 
Relator  remanded  to  custody. 


ENGLE  V.  WALSH. 

(Supreme   Court   of   Illinois,    1913,   258    111.   98,    101    N.    E.   222.) 

ViCKERS,  J.  Charles  F.  Engle  filed  a  bill  in  the  circuit  court  of 
Cook  county  against  the  Amalgamated  Sheet  Metal  Workers'  Labor 
Union  No.  73,  International  Alliance,  (hereinafter  referred  to  as  the 
union),  and  Thomas  Redding,  president,  Thomas  Walsh,  business 
agent,  and  other  persons,  officers  and  members  of  committees  and 
boards  of  the  union,  for  an  injunction  restraining  the  defendants 
from  enforcing,  or  attempting  to  enforce,  a  fine  which  had  been  im- 
posed upon  the  complainant  by  said  union  for  an  alleged  violation 
of  the  rules  of  the  union  for  the  alleged  misuse  of  the  union  label  on 
non-union  furnace  stacks.       ... 

From  the  foregoing  statement,  which  embodies  all  of  the  material 
allegations  of  the  bill,  it  is  apparent  that  plaintiff  in  error  is  seeking 
to  invoke  the  jurisdiction  of  a  court  of  equity  in  a  controversy  that 
has  arisen  between  him  and  the  union  of  which  he  is  a  member.  The 
rights,  if  any,  which  plaintiff  in  error  is  seeking  to  enforce  are  such 
as  he  has  acquired  by  reason  of  his  membership  in  the  union.  He 
seeks  to  retain  his  status  as  a  member,  with  all  rights  incident 
thereto,  without  the  i)ayment  of  the  fine  which  has  been  imposed 
upon  him  by  the  legally  constituted  authorities  of  his  union.  It  is 
not  charged  that  the  hearing  before  the  executive  board  was  wanting 
in  any  requirement  prescribed  by  the  rules  of  the  union.  The  effect 
of  the  allegation  on  this  point  is  that  plaintiff  in  error  was  erroneously 
and  wrongfully  convicted,  and  he  appeals  io  a  court  of  equity  for  the 
purpose  of  having  the  wrong  redressed.  The  courts  have  frequently 
been  called  up(jn  lo  restrain  voluntary  associations,  such  as  churches. 

1  Eq.— 25 


386'  EEPARATION    AND    PEEVENTION    OF    TOETS.  (Part    1 

lodges  of  various  kinds,  boards  of  trade,  and  the  like,  from  expelling 
members  for  an  alleged  violation  of  some  rule  or  regulation  of  the 
association,  and  in  such  cases  this  court  has  uniformly  refused  to 
sanction  the  practice  of  calling  on  a  court  of  equity  to  adjust  disputes 
arising  between  such  associations  and  its  members,  and  in  the  board 
of  trade  cases  that  have  come  before  this  court  it  has  refused  juris- 
diction of  the  controversy  on  the  ground  that  the  remedy  of  such 
member,  if  he  has  any,  is  in  a  court  of  law.  (People  v.  Board  of 
Trade,  45  111.  112;  People  v.  Board  of  Trade,  80  id.  134;  Baxter  v. 
Board  of  Trade,  83  id.  146;  Sturges  v.  Board  of  Trade,  86  id.  441; 
Board  of  Trade  v.  Nelson,  162  id.  431 ;  Green  v.  Board  of  Trade, 
174  id.  585.)  In  People  v.  Board  of  Trade,  80  111.  134,  on  page  137, 
it  was  said:  "The  board  of  trade,  so  far  as  we  can  see,  is  only  a 
i-vdluntary  organization,  which  its  charter  fully  empowers  Jt  to 
govern  in  such  mode  as  it  may  deem  most  advisable  and  proper.  It 
has  adopted  its  by-laws,  provided  a  forum  for  their  enforcement, 
which  has  acted  thereunder,  and  the  court  will  not  interfere  to  control 
its  action."  In  churches,  lodges,  labor  unions,  and  other  like  voluntary 
associations,  each  person  on  becoming  a  member,  either  by  express 
stipulation  or  by  implication,  agrees  to  abide  by  all  rules  and  regulations 
adopted  by  the  organization.  (Bostedo  v.  Board  of  Trade,  227  111. 
90.)  Courts  will  not  interfere  to  control  the  enforcement  of  by-laws 
of  such  associations,  but  they  will  be  left  free  to  enforce  their  own 
rules  and  regulations  by  such  means  and  with  such  penalties  as  they 
may  see  proper  to  adopt  for  their  government.  The  case  presented 
by  plaintiff  in  error  in  his  bill  must  fall,  we  think,  within  the 
rule  announced  in  the  foregoing  authorities.     .     .     . 

Recurring  again  to  the  averments  of  the  bill,  it  will  be  noted  that 
plaintiff  in  error  has  made  no  attempt  to  set  out  the  by-laws,  rules 
and  regulations  of  the  union,  nor  is  it  charged,  even  in  general 
language,  that  his  trial  was  contrary  to  the  prescribed  procedure 
for  such  hearings.  It  does  appear  from  the  bill  that  a  formal  charge 
was  lodged  against  him,  that  he  had  written  notice  of  the  time  and 
place  when  and  where  a  hearing  would  be  had,  and  that  he  appeared 
before  the  executive  board  and  participated  in  the  hearing.  He  pre- 
sented his  side  of  the  controversy  to  the  board.  Since  it  is  not  averred 
in  the  bill  that  this  board  was  not  the  proper  tribunal  to  hear  the 
charge  nor  that  its  proceedings  were  contrary  to  the  provisions  of  the 


Ch.    3)         DOMESTIC,  SOCIAL   AND    POLITICAL.   RELATIONS.  387 

rules  of  the  union,  it  must  be  assumed  that  the  hearing  was  be- 
fore the  proper  authority  and  that  the  proceedings  were  conducted 
in  conformity  to  the  prescribed  rules.  This  being  true,  it  cannot 
be  said  that  the  executive  board  had  no  jurisdiction  to  hear  said 
charge.  Jurisdiction  is  by  legal  implication  admitted  by  plaintiff 
in  error.  Plaintiff  in  error  having  failed  to  set  out  the  by-laws  and 
regulations  of  the  union,  we  do  not  know  whether  he  had  exhausted 
all  of  his  remedies,  by  appeal  or  otherwise,  within  the  union.  If 
there  is  a  by-law  permitting  plaintiff  in  error  to  appeal  to  some  re- 
viewing body  from  the  decision  of  the  executive  board,  clearly  he 
would  have  no  standing,  in  any  event,  in  a  court  of  equity  until  he  had 
exhausted  the  remedies  provided  by  his  association  for  the  redress  of 
his  supposed  grievance.  The  bill  was  clearly  defective  in  failing  to 
show  what  the  by-laws  and  regulations  of  the  union  are,  since  without 
them  no  court  can  determine  what  the  rights  of  the  member  are.  The 
bill  is  also  defective  in  that  it  fails  to  show  a  want  of  jurisdiction  or 
a  case  of  such  irreparable  injustice  and  hardship  as  to  warrant  the 
interposition  of  a  court  of  equity. 


KEARNS  V.  HOWLEY. 

(Supreme   Court  of   Pennsylvania,    1898,    188   Pa.    116,   41   Atl.   273.) 

Bill  in  equity  for  an  injunction  against  the  chairman  and  secretary 
of  the  democratic  county  committee  of  Allegheny  county.     .     .     . 

Dean,  J.  The  members  of  the  democratic  county  committee  of 
Allegheny  county  by  the  rules  of  the  party  are  elected  at  the  primary 
elections  on  the  last  Saturday  of  August  in  each  year.  By  Rule  VII. 
the  election  officers  must  certify  the  vote  for  each  candidate  to  the 
executive  committee  of  each  ward,  borough  and  township,  and  also 
to  the  chairman  of  the  county  committee.  The  election  of  the  delegates 
who  are  to  compose  the  county  convention  to  nominate  candidates 
for  county  offices  are  elected  at  the  same  time,  and  the  convention 
meets  the  following  Monday  or  Tuesday.  Rule  VII.  having  provid- 
ed for  certification  of  the  vote  to  the  county  chairman,  Rule  VIII. 
provides  that  "a  list  of  the  county  committee  so  elected  shall  be  pre- 
pared by   the  chairman,   and  announced   at   the   county   convention." 


388  EEPAKATION    AND    PREVENTION    OF    TOETS.  (Part    1 

By  Rule  X.  the  county  committee  so  chosen  must  meet  the  first  Mon- 
day of  April   following,  and  elect  a  chairman  to   serve   for  the  en- 
suing year.     The  defendant,  Joseph  Howley,  had  been  elected  chair- 
man on  the  first  Monday  of  April,  1897,  and  therefore  was  chairman 
in  August   of   that   year   at   the   county   convention.      He   announced 
the  members  elect  to  the  county  committee,   so   far  as   returns   had 
been  received.     Quite  a  number  of  districts  had  not  certified  the  elec- 
tion of  members  of  the  committee;  these  were  announced  as  vacan- 
cies to  the  number  of  258,  out  of  a  roll  of  521.    The  chairman,  Howley, 
at  the  proper  time,  called  a  meeting  of  the  county  committee,  as  pro- 
vided in  Rule  X.,  for  the  first  Monday  of  April,  1898;  he  was  a  can- 
didate for  re-election  as  chairman.    The  bill  filed  the  Thursday  before 
the  meeting  averred  that  in  a  large  number,  258,  of  the  districts  an- 
nounced as  vacant,  no  duly  elected  committeeman  had  been  certified; 
that  Howley,  in  violation  of   the  rules,   had  already  filled  vacancies 
with  names  of  persons  not  elected,  and  was  about  to  complete  the 
roll   with  names   of    others   appointed   by   himself ;    further,   that   he 
had  erased   from  the   roll  the  names  of   duly  elected  members,  and 
was  about  to  wrongfully  appoint  others.     The  prayer  of  the  bill  was 
that   Howley  be   restrained  by   injunction   from   erasing  names,   and 
that  he  be  enjoined  from  filling  vacancies,  or  in  any  way  tampering 
with  or  interfering  with  the  roll.     The  defendants  made  no  answer, 
but  contented  themselves  with  denying  the  jurisdiction  of  the  court. 
After  hearing  testimony,  the  learned  judge  of  the  court  below  found 
the  material  facts  averred  by  plaintift'  to  be  true,  and  as  a  conclusion 
of  law  that  the  court  had  jurisdiction  to  entertain  the  bill  and  grant 
relief ;  therefore,  he  entered  a  decree  restraining  the  defendants  or 
either  of  them  from  adding  names  to  the  roll  upon  any  pretense,  or 
striking  therefrom  names,  and  annexed  to  the  decree  a  roll  of  those 
whose  names  should  properly  appear  thereon.     Thereupon  defendants 
bring  this  appeal  and  assign  for  error  want  of  jurisdiction  in  the  court. 
We  see  in  the  evidence  no  reason  to  question  the  correctness  of  the 
court's  finding  of   fact.     Howley  probably  filled   the  vacancies   with 
the  names  of   democrats  personally   agreeable  to   himself,   and   it   is 
by  no  means  incredible  they  accorded  with  him  in  his  ambition  to  con- 
tinue himself  in  office.     His  opinion  was  that,  by  virtue  of  his  office, 
he  had  power  to  fill  the  vacancies,  and  it  is  not  clear  that  he  was  wrong 
in  this  opinion.     However  this  may  be,  if  he  usurped  the  power  or 


Cll.    3)  DOMESTIC,  SOCIAL    AND    POLITICAL    RELATIONS.  389 

wrongfully  exercised  it,  he  was  amenable  to  his  party,  which  could 
dethrone  him  and  visit  him  with  political  penalties.  But  the  question 
here  is,  has  a  court  of  equity  jurisdiction  at  the  instance  of  dissatisfi- 
ed members  of  the  party  or  committee  to  correct  and  make  up  the 
roll,  and  force  warring  democrats  to  associate  with  each  other,  when 
they  are  averse  to  such  associations. 

It  is  clear  to  us  that  no  property  right  in  plaintiffs  or  in  others  as 
members  of  the  county  committee  existed.  As  a  purely  political 
committee  it  neither  owned  nor  pretended  to  own  or  to  derive  any 
benefit  from  anything  of  value  held  by  them  in  common.  That  money 
for  legitimate  election  expenses  was  contributed  by  democrats  to 
the  committee,  and  by  the  members  paid  out,  gave  the  one  who 
handled  the  share  put  in  his  possession  no  personal  ownership  in  it. 
He  could  derive  honestly  no  personal  benefit  from  the  fund,  and 
consequently  had  no  property  right.  Such  a  duty,  would  be  a  very 
"dry  trust,"  if  honestly  executed.  But  the  learned  judge  of  the  court 
below  was  of  opinion  that,  even  if  membership  of  the  committee 
conferred  no  property  right,  nevertheless,  under  the  act  of  June  16, 
1836,  which  confers  on  the  common  pleas  the  jurisdiction  and  powers 
of  a  court  of  chancery  in  "The  supervision  and  control  of  all  corpora- 
tions, other  than  those  of  a  municipal  character,  and  unincorporated 
societies  or  associations  and  partnerships,"  he  had  jurisdiction  to  en- 
tertain the  bill  and  found  thereon  his  decree.  We  have  more  than  once 
decided  that  this  act  gives  to  the  courts  only  the  powers  of  the  English 
court  of  chancery.  See  Kneedler  v.  Lane,  3  Grant,  523.  where  Justice 
Strong  fully  and  clearly  construes  the  act,  and  so  pronounces.  The 
English  chancellor  has  always  disclaimed  authority  to  interfere  with 
the  action  of  voluntary  and  unincorporated  associations  where  no 
right  of  property  was  involved:  Rigby  v.  Connol,  L.  R.  14  Ch.  Div. 
482.  We  will  not  cumber  this  opinion  with  further  citations  from  the 
English  reports  to  sustain  this  view,  for  it  is  scarcely  questioned  by 
counsel  for  appellee.  The  court  below  we  think  was  misled  into 
claiming  for  the  courts  of  Pennsylvania  enlarged  chancery  powers, 
because  of  the  tendency  of  our  late  legislation  to  regulate  primary 
elections  and  prevent  fraud  and  corruption  by  the  election  officers. 
It  may  be,  if  this  bill  had  aimed  to  prevent  a  threatened  violation  of 
law  by  any  of  these  officers,  it  could  have  been  maintained.  But  there 
is  no  statutory  injunction  or  prohibition  directed  to  chairmen  and 
secretaries  of  county  committees;  they  are  amenable  alone  to  then- 


390  REPARATION     AND    PREVENTION    OF    TORTS.  (Part    1 

party,  which  is  purely  pohtical.     The  authority  of  the  courts  in  such 
a  case  is  thoroughly  discussed  by  the  New  York  court  of  appeals  in 
McKane  v.  Adams,  123  N.  Y.  609.     In  that  case  McKane  filed  a  bill 
to  enjoin  the  democratic  committee  of  Kings  county  from  deying  his 
membership.      The   court   dismissed    it,    saying   in   the   course   of    an 
elaborate  opinion:     "His   status  therefore  is   that,   though  his  town 
association  elected  him  as  a  delegate  to  the  general  committee  of  the 
county  organization,  the  members  of  that  body  have  refused  to  admit 
him  to  association  with  them  in  their  office.     And  if  they  would  and 
will  not  associate  with  him,  upon  what  reasoning  or  principle  should 
they  be  compelled  to,  and  the  aid  of  a  court  of  justice  invoked?    The 
right  to  be  a  member  is  not  conferred  by  any  statute ;  nor  is  it  deriv- 
able as  in  the  case  of  an  incorporate  body.     It  is  by  reason  of  the 
action  and  of  the  assent  of  the  members  of  the  voluntary  association 
that  one  becomes  associated  with  them  in  the  common  undertaking, 
and  not  by  any  outside  agency  or  by  the  individual's  action.     Mem- 
bership is  a  privilege  which  may  be  accorded  or  withheld,  and  not  a 
right  which  can  be  gained  independently  and  then. enforced.     So  when, 
as  by  the  plaintiff's  own  showing,  the  committee  refused  to  admit  him 
as  a  member  or  to  confirm  his  election,  he  was  remediless  against  that 
refusal.     No  rights  of  property  or  of  person  were  affected,  and  no 
rights  of  citizenship  were  infringed  upon. 

We  adopt  this  language  as  expressing  our  opinion  in  this  case, 
without  referring  to  and  citing  the  many  cases  to  which  counsel  on 
both  sides  have  called  our  attention,  for  none  of  them  is  of  such  au- 
thority as  to  move  us  from  our  previous  decisions.  The  constitution 
and  statutes  of  the  commonwealth  guarantee  to  all  citizens  the  right  of 
self-government  by  protecting  them  in  the  exercise  of  the  elective 
franchise  for  all  officers  voted  for  at  state  and  local  elections;  and 
lately,  the  law  has  gone  further,  and  has  so  far  recognized  political 
parties  as  to  pass  an  act  prescribing  the  duties  of  officers  at  primary 
elections,  and  imposing  severe  penalties  for  misconduct.  But  be- 
yond this,  political  parties  and  party  government  are  unknown  to  the 
law;  they  must  govern  themselves  by  party  law.  The  courts  cannot 
step  in  to  compose  party  wrangles,  or  to  settle  factional  strife.  If 
they  attempt  it,  it  may  well  be  doubted  whether  they  would  have 
much  time  for  anything  else. 

We  reverse  the  decree  and  direct  that  the  bill  be  dismissed  at  costs 
of  appellee. 


Cll.    4)  PEEVENTIOX  OF  CRIMES  AND   PROCEEDINGS.  391 


'CHAPTER  IV.  PREVENTION  OF  CRIMES  AND  CRIMINAL 

PROCEEDINGS 


POWERS  V.  FLANSBURG. 

(Supreme  Court  of   Nebraska,   1911,   90   Neb.   467,   133   N.   W.   844.) 

Three  citizens  and  property  owners  in  the  village  of  Trenton  began 
this  action  in  the  district  court  of  Hitchcock  county  to  enjoin  the  de- 
fendant from  "conducting  or  in  any  manner  operating  and  keeping 
open"  a  pool  and  billiard-hall  in  the  village  of  Trenton.  The  finding 
and  judgment  were  for  the  defendant,  and  the  plaintiffs  have  appealed. 

The  petition  alleges  that  the  defendant's  license  has  expired,  and 
that  he  conducts  the  business  complained  of  without  a  license;  that 
he  keeps  and  sells  intoxicating  liquors  in  his  place  of  business  with- 
out any  license  so  to  do,  and  allows  drinking  and  swearing  in  his 
place  of  business,  and  in  various  ways  keeps  and  maintains  a  disorder- 
ly and  disreputable  house,  which  has  become  and  is  a  public  nuisance. 
A  large  amount  of  evidence  was  taken,  many  citizens  were  called  as 
witnesses,  and  the  evidence  in  regard  to  the  manner  of  keeping  and 
conducting  the  business  is  somewhat  conflicting,  but  there  is  evidence 
tending  to  prove  that  the  defendant  is  keeping  and  selling  intoxicating 
liquors  contrary  to  law,  and  maintaining  a  disorderly  house,  and  doing 
other  illegal  and  improper  things  complained  of  in  the  petition.  It 
is  stated  in  the  brief  that  the  village  council  w^as  enjoined  by  the 
district  court  from  repealing  the  ordinance  which  provided  for  licensing 
billiard-halls,  and  that  prosecutions  were  begim  against  the  delendant 
for  keeping  and  selling  intoxicating  liquors  without  license,  and  that 
these  actions  have  been  allowed  to  remain  in  the  courts  without  dc- 
termination,  and  that  the  courts  and  the  officers  of  the  law  arc  pri'- 
venting  the  good  people  of  the  village  of  Trrnton  from  enforcing  the 
law  and  from  putting  a  slop  to  the  unlawful  actions  and  conduct 
of  the  defendant. 


392  PEEVENTION  OF  CEIMES  AND  PROCEEDINGS.     (Part    1 

The  evidence  shows  that  an  action  was  begun  by  this  defendant  in 
the  district  court  to  enjoin  the  village  council  from  enacting  an  ordi- 
nance repealing  the  ordinance  under  which  he  was  licensed,  and  in 
that  action  a  temporary  injunction  was  allowed  as  prayed,  but  the 
evidence  does  not  show  what  became  of  these  proceedings,  nor  whether 
the  action  was  promptly  tried  or  was  unduly  delayed.  The  evidence 
also  shows  that  a  complaint  was  made  against  this  defendant  in  the 
county  court  of  Hitchcock  county,  charging  him  with  unlawfully 
keeping  intoxicating  liquors  with  intent  to  sell  or  dispose  of  the  same 
contrary  to  law,  and  that  a  warrant  was  issued,  under  which  a  search 
was  made  of  the  premises  and  certain  liquors  found  and  the  defendant 
arrested,  and  that  a  hearing  was  had  before  the  county  court,  and 
that  the  defendant  was  held  to  the  district  court  for  trial,  and  a  judg- 
ment entered  by  the  county  court  ordering  the  liquors  to  be  destroyed. 
The  defendant  in  that  action  then  gave  bond  for  his  appearance  in 
the  district  court  and  for  an  appeal  to  the  district  court  from  the 
judgment  ordering  the  destruction  of  the  liquors.  The  evidence  does 
not  show  what  w^as  done  in  this  matter  in  the  district  court.  There 
is  no  evidence  tending  to  support  the  statements  of  the  brief  criticising 
the  courts  and  ofificers  of  Hitchcock  county. 

If  we  consider  only  the  allegations  of  plaintiffs'  petition  and  the 
evidence  which  they  introduced,  it  appears  that  the  defendant  has 
been  guilty  of  various  crimes  as  charged  in  the  petition,  and  that  he  is 
violating  the  criminal  law  in  many  particulars.  There  seems  to  be 
a  great  diversity  of  opinion  in  regard  to  these  matters  as  disclosed  by 
the  evidence,  and  we  do  not  find  it  necessary  to  determine  the  pre- 
ponderance of  the  evidence  under  the  issues  presented.  The  trial 
court  made  no  special  fiiidings  of  fact.  There  is  nothing  in  the  petition 
or  evidence  to  indicate  that  the  criminal  laws  of  the  state  are  in  any 
respect  insufficient  to  punish  the  defendant  and  put  a  stop  to  the 
crimes  which  it  is  alleged  he  had  committed,  if  indeed  the  defendant 
is  guilty  as  alleged.  The  petition  does  not  allege  any  special  interest 
of  these  plaintiffs  in  these  proceedings,  as  distinguished  from  the  in- 
terest of  the  general  public.  On  the  other  hand,  it  is  specifically 
alleged  that  this  action  was  brought  by  these  plaintiffs  in  their  own 
behalf  and  in  behalf  of  all  of  the  citizens  of  Trenton  who,  it  is  alleged, 
were  similarly  situated.  Under  these  circumstances,  it  is  clear  that 
this  action  cannot  be  nmintained.     If  the  defendant  persists  in  keep- 


Cll.    4)  PREVENTION  OF   CEIMES   AND    PROCEEDINGS.  393 

ing  and  selling  liquors  without  license  at  his  place  of  husiness  in 
Trenton,  the  criminal  law  is  amply  sufficient  to  punish  such  offenses. 
If  the  proper  officers  refuse  or  neglect  to  enforce  the  law,  a  remedy 
is  provided  other  than  by  injunction.  If  a  public  nuisance  is  main- 
tained that  affects  alike  all  the  members  of  the  community,  the  public 
authorities  may  deal  with  it,  but  these  plaintiffs  have  not  shown  such 
an  interest  as  will  enable  them  to  maintain  this  action.  If  the  village 
authorities  were  improperly  enjoined  by  the  district  court,  the  remedy 
is  by  appeal,  and  a  review  of  those  proceedings  cannot  be  had  in 
another  and  independent  action.  The  plaintiffs  have  failed  to  allege 
or  prove  sufficient  grounds,  or,  in  fact,  any  necessity,  for  the  extra- 
ordinary writ  of  injunction ;  nor  have  they  shown  any  special  interest, 
as  distinguished  from  the  interest  of  the  general  public. 
The  judgment  of  the  district  court  is  affirmed. 


DAVIS  ET  AL  v.  THE  AMERICAN  SOCIETY  FOR  THE  PRE- 
VENTION OF  CRUELTY  TO  ANIMALS 

(New  York  Court  of  Appeals,  1878,  75  N.  Y.  362.) 

Earl,  J.  The  plaintiffs  allege  in  their  complaint  that  in  January 
1873,  they  were  engaged  extensively  in  the  business  of  slaughtering 
hogs,  in  the  city  of  New  York ;  and  they  describe  the  manner  in  which 
they  conducted  their  business,  claiming  that  they  slaughtered  the 
hogs  by  the  most  approved,  expeditious,  humane  and  painless  methods ; 
and  they  allege  that  the  defendant  Bergh,  the  president  of  the  de- 
fendant, The  American  Society  for  the  Prevention  of  Cruelty  to 
Animals,  came  to  their  place  of  business,  and  announced  to  them  and 
their  employes  that  they  must  discontinue  slaughtering  hogs  by  the 
methods  then  used,  and  thereupon  arrested  the  plaintiff  Crane  and 
one  of  such  employes  for  alleged  cruelty  to  animals,  and  threatened 
that  he  would  return  in  one  week,  and  if  he  then  found  the  plaintiffs 
or  others  carrying  on  said  business,  in  the  same  way.  he  would  arrest 
all  persons  engaged  in  it  and  stop  the  business,  as  often  as  he  found 
plaintiffs  conducting  it  in  that  way.  They  then  allege  the  extent 
and  character  of  their  business  and  facts  showing  thai  if  P>ergh  should 
carry  his  threat  into  execution  they  would  suffer  great  damage,   for 


394  PEEVENTION  OF  CEIMES  AND  PROCEEDINGS.    (  Part    1 

which  no  adequate  remedy  could  he  had  in  actions  at  law,  a  mul- 
tiplicity of  which  would  have  to  he  instituted  at  great  expense.  They 
further  allege  that  they  are  informed  and  helieve  that  Bergh  claims 
to  have  authority  to  interfere  with  and  stop  plaintiffs'  business,  under 
pretense  of  cruelty  to  the  hogs  slaughtered,  and  that  they  are  ap- 
prehensive that  unless  restrained  he  will  endeavor  to  carry  his  "threats 
into  execution,  and  will  continually  interfere  with  and  arrest  plaintififs 
and  their  employes,  and  stop  said  business  so  long  as  plaintiffs  carry 
it  on  in  the  manner  aforesaid;"  and  they  pray  judgment  perpetually 
restraining  the  defendants  and  their  agents  "from  interfering  with 
plaintiffs  in  their  business  in  any  way  or  manner  whatever  and  from  in- 
terfering with  their  agents  and  employes  while  engaged"  in  such  busi- 
ess.  They  do  not  allege  that  there  is  no  valid  law  under  which  the  de- 
fendants can  act  to  prevent  cruelty  to  animals,  or  that  the  defendants 
are  not  authorized  to  prevent  such  cruelty ;  but  the  claim  put  forth  is 
that  the  plaintiffs  do  not  practice  any  cruelty  to  the  hogs  and  they  thus 
tender  an  issue  of  facts  as  to  their  guilt  or  innocence  of  the  crime 
alleged  against  them. 

The  defendants,  in  their  answer,  take  issue  with  the  plaintiffs,  and 
allege,  among  other  things,  that  the  methods  adopted  by  plaintiffs  for 
slaughtering  the  hogs  are  cruel  and  are  attended  with  needless  torture 
and  torment;  and  that  Bergh  went  upon  plaintiff's  premises,  at  the 
time  mentioned  as  an  officer  of  the  Society  for  Prevention  of  Cruelty 
to  Animals,  without  any  malice  towards  plaintiffs,  and  for  the  sole 
purpose  of  enforcing  the  laws  of  the  State  enacted  to  prevent  such 
cruelty. 

Upon  the  trial,  the  plaintiffs  gave  very  positive  evidence  tending 
to  show  that  they  did  not  practice  needless  cruelty  upon  the  hogs 
slaughtered,  and  also  to  show  the  allegations -in  their  complaint  as  to 
the  manner  in  which  they  would  be  greatly  damaged  by  the  threatened 
interference  of  the  defendants.  They  also  proved  that  the  defendant 
Bergh  came  to  their  premises,  as  alleged,  and  announced  that  they 
must  cease  to  slaughter  the  hogs  in  the  manner  then  in  use,  and  that 
he  should  return  in  a  week,  and  if  he  found  them  slaughtering  the 
hogs  in  the  same  way,  he  would  arrest  every  man  engaged.  He  made 
no  threats  to  break  up  or  stop  their  business, — but  simply  that  he 
would  make  the  arrest.     ,     .     . 

Hence  it  cannot  be  disputed  that  Bergh  was  acting  under  a  valid  law 
and  regular  authority,  and  that  he  had  the  right  to  make  the  threatened 


<'ll.    4)  Pl^EVEXTTOX  OF   CET^IES    AXP    rrtOCEEDTXCP,  395 

arrests,  if  the  plaintiffs  were  actually  engaged  in  violating  the  law 
to  prevent  cruelty  to  animals.  The  only  question  for  contestation 
was  whether,  as  matter  of  fact,  they  were  guilty  or  innocent  of  such 
violation ;  and  the  determination  of  that  question  could  not,  by  such 
an  action  as  this,  be  drawn  to  a  court  of  equity.  Whether  a  person 
accused  of  a  crime  be  guilty  or  innocent,  is  to  be  determined  in  a 
common  law  court  by  v  jury  ;  and  the  people,  as  well  as  the  accused, 
have  the  right  to  have  it  thus  determined.  If  this  action  could  be 
maintained  in  this  case,  then  it  could  in  every  case  of  a  person  accused 
of  a  crime,  where  the  same  serious  consequences  would  follow  an  ar- 
rest: and  the  trial  of  offenders,  in  the  constitutional  mode  prescribed 
by  law,  could  forever  be  prohibited.  A  person  threatened  with  arrest 
for  keeping  a  bawdy  house,  or  for  violating  the  excise  laws,  or  even  for 
the  crime  of  murder,  upon  the  allegation  of  his  innocence  of  the  crime 
charged  and  of  the  irreparable  mischief  which  would  follow  his  arrest, 
could  always  draw  the  question  of  his  guilt  or  innocence  from  trial  in 
the  proper  forum.  An  innocent  person,  upon  an  accusation  of  crime, 
may  be  arrested  and  ruined  in  his  character  and  property,  and  the 
damage  he  thus  sustains  is  damnum  absque  injuria,  unless  the  case 
is  such  that  he  can  maintain  an  action  for  malicious  prosecution  or 
false  imprisonment.  He  is  exposed  to  the  risks  of  such  damage  by 
being  a  member  of  an  organized  society  and  his  compensation  for  such 
risks  may  be  found  in  the  general  welfare  which  society  is  organized 
to  promote. 

This  action  is  absolutely  without  sanction  in  precedents  or  prin- 
ciples of  equity.  It  is  impossible,  in  a  general  way  to  define  the 
cases  in  which  courts  of  equity  will  intervene  by  injunction  to  pre- 
vent irreparable  mischief.  They  will  sometimes  enjoin  public  officers, 
who  are  attempting  to  act  illegally  or  without  competent  authority, 
to  the  injury  of  the  public  or  individuals.  As  was  said  by  Allen  J. 
in  The  People  v.  Canal  Board,  55  N.  Y.,  390:  "That  public  bodies 
and  public  officers  may  be  restrained  by  injunction  from  proceeding 
in  violation  of  law,  to  the  prejudice  of  the  public  or  to  the  injury 
of  individual  rights,  cannot  be  questioned."  I'.ut  the  case  contemplated 
by  that  learned  judge  was  not  one  like  this,  where  a  public  officer, 
acting  in  good  faith,  under  competent  authority,  was  threatening  to 
arrest  persons  accused  of  crime,  for  the  purpose  of  taking  them 
before  the  proper  tribunal   for  trial  upon  the  ([uestion  of  their  guih 


396  PEEVENTION  OF  CRIMES  AND  PEOOEEDINGS.    (Pari    1 

or  innocence.  The  administration  of  the  criminal  law  would  be  greatly 
paralyzed,  if  no  criminal  could  be  arrested  until  it  could  be  infallibly 
ascertained  that  he  was  guilty  of  the  offense  charged.  The  case 
nearest  in  point  for  the  plaintiffs  is  that  of  Wood  v.  The  City  of 
Brooklyn  (14  Barb.,  425).  It  is  but  a  Special  Term  decision  and  yet 
it  is  by  an  able  judge;  and  I  will  refer  to  it  only  to  point  out  more 
clearly  a  distinction  which  I  make.  There  an  injunction  was  granted 
to  prevent  the  enforcement  of  a  void  ordinance  of  the  city  of  Brooklyn. 
Without  determining  v.'hether  that  case  was  properly  decided,  it  is 
widely  different  from  this.  If  here,  th-^  law,  under  which  Bergh 
was  acting,  had  been  wholly  void,  or  if  he  had  been  wholly  without 
authority  to  act  under  the  law,  then  this  case  would  have  been 
analogous  to  that.  But  that  case  would  have  been  widely  different,  and 
certainly  have  required  a  different  determination,  if  the  ordinance 
had  been  valid,  and  the  sole  question  had  been  whether  or  not  the 
plaintiff  was  guilty  of  its  violation.  It  is  therefore  unnecessary  to 
determine,  in  this  case,  whether  the  plaintiffs  were,  as  matter  of  fact, 
guilty  of  violating  the  law;  and  for  the  reasons  stated,  the  judgment 
must  be  affirmed,  with  costs. 


BISBEE  V.  ARIZONA  INS.  AGENCY. 

(Supreme  Court  of  Arizona,   1912,   14  Ariz.   313,   127   Pac.   722.) 

Ross,  J.  This  is  an  action  of  injunction  instituted  by  appellees 
to  restrain  the  city  of  Bisbee  and  its  marshal  from  enforcing  the 
terms  of  an  ordinance  of  said  city  requiring  fire  insurance  agents 
to  pay  a  quarterly  license  before  transacting  any  business,  and  prescrib- 
ing penalties  for  its  violation.  The  complaint  alleges  the  invalidity 
of  the  ordinance,  irreparable  injury  not  susceptible  of  estimation,  and 
a  multiplicity  of  suits.  The  appellants  demurred  to  the  complaint  for 
insufffciency  in  that  it  shows  upon  its  face  an  adequate  remedy  at  law. 

As  a  general  rule,  the  equity  side  of  the  court  may  not  be  invoked 
when  the  complainant  has  a  plain,  speedy,  and  adequate  remedy  at  law. 
An  examination  of  the  complaint,  with  a  view  of  ascertaining  from 
its  allegations  whether  it  discloses  that  the  appellees  had  an  adequate 
remedy  at  law,  is  necessary.     For  a  violation  of  the  terms  of  the 


Ch.    4)  PREVENTTOX  OF   CRIMES  AND   PROCEEDINGS.  397 

ordinance,  the  natural  course,  and  the  one  provided  by  law,  would 
be  tbe  arrest  and  trial  of  the  transgressor  in  the  municipal  courts  of  the 
city  of  Bisbee.  In  that  court  and  the  superior  court  of  Cochise  county 
and  the  supreme  court  to  which  appeals  may  be  had,  the  validity  of  the 
ordinance  can  be  tested.  The  remedy  ordinarily  for  such  cases  is  in 
the  criminal  side  of  the  courts,  and  we  must  presume  the  courts  will 
declare  the  law,  and,  if  the  ordinance  is  found  to  be  void,  so  adjudge 
it.  Should  it,  however,  be  found  invalid,  the  defendants  would  be  in 
no  worse  position  than  if  found  innocent  of  violating  a  valid  law. 
A  party  charged  with  crime  has  as  much  right  to  ask  that  equity  pass 
upon  the  question  of  his  innocence  as  to  ask  that  equity  pass  upon  the 
validity  or  invalidity  of  the  statute  or  ordinance  denouncing  the  crime. 
The  inapplicability  of  the  writ  of  injunction  to  cases  of  this  kind  can 
be  very  forcibly  illustrated  by  this  case.  Had  the  trial  court  found  the 
ordinance  valid,  it  could  pronounce  no  judgment  of  conviction.  The 
matter  would  have  to  be  relegated  to  the  courts  of  proper  jurisdiction 
and  the  issue  there  tried  out.  Had  the  court  found  the  ordinance  void, 
its  judgment  would  become  final,  but  no  one  will  conted  that  equity 
should  take  cognizance  to  declare  an  ordinance  void  and  not  to  declare 
it  valid.  Should  the  ordinance  be  found  valid  upon  a  prosecution 
for  its  violation,  the  appellees  cannot  complain,  no  matter  how  it  may 
afifect  their  business,  li  it  is  invalid,  that  becomes  a  matter  of  defense 
to  be  interposed  in  the  criminal  prosecution. 

"The  legality  or  illegality  of  the  ordinance  is  purely  a  question  oi 
law,  which  it  is  competent  for  a  court  at  law  to  decide.  We  cannot 
assume  that  the  courts  in  which  the  validity  of  the  ordinance  is  pre- 
sented will  not  decide  this  question  correctly.  .  .  .  The  legal  pre- 
sumption is,  that  every  court  will  decide  questions  presented  for  de- 
termination properly,  and  conduct  proceedings  before  them  fairly 
and  impartially  (Wolfe  v.  Burke,  56  N.  Y.  115),  so  that  it  is  at  once 
apparent  that  the  main  question  upon  which  appellee  relies,  namely, 
the  invalidity  of  the  ordinance,  can  be  presented  and  determined  in 
any  action  which  may  Ijc  instituted  against  him  for  the  violation  of  this 
ordinance ;  and  as  the  law  is  well  settled,  by  numerous  well-considered 
cases,  that,  as  a  general  rule,  a  bill  in  eciuity  will  not  lie  to  restrain 
prosecutions  under  municipal  ordinance  upon  the  mere  groimd  of  its 
alleged  illegality,  for  the  obvious  reason  that  the  parly  prosecuted 
thereunder  has  a  complete  remedy  at  law,  because  he  can  avail  himself 


398  PEEVENTION  OP  CHIMES  AND  PEOOEEDINGS.    (Part    1 

of  such  illegality  as  a  legal  defense  in  prosecutions  thereunder  (Poyer 
V.  Village  of  Des  Plaines,  20  111.  x\pp.  30;  Levy  v.  City  of  Shreveport, 
27  La.  Ann.  620;  Dillon  on  Municipal  Corporations,  sees.  906,  908, 
note;  High  on  Injunctions  sec.  1244),  it  follows  that  the  averment  in 
the  bill  of  appellee,  that  the  ordinance  of  which  he  complains  is  invalid, 
is  not,  of  itself,  sufficient  to  entitle  him  to  the  relief  granted  by  the 
lower  court."    Denver  v.  Beede,  25  Colo.  172,  54  Pac.  624. 

The  injury  complained  of  may  or  may  not  follow  a  prosecution 
of  appellees.  Should  the  court  trying  the  case  declare  the  ordinance 
void,  no  considerable  injury  would  result,  and,  should  it  find  the 
ordinance  valid  and  intlict  punishment  for  its  violation,  it  would  be 
performing  a  plain  duty,  and,  while  the  result  might  be  very  injurious 
to  the  appellees,  the  injury  would  be  just  what  the  law  intends  as  a 
punishment  for  its  transgression. 

A  multiplicity  of  suits  may  easily  be  avoided  and  could  not  follow, 
unless  the  appellees,  pending  the  determination  of  the  legality  of  the 
ordinance,  choose  to  run  the  risk  of  repeating  their  acts.  A  temporary 
suspension  of  their  business  as  insurance  agents  during  the  time  re- 
quired to  test  the  validity  of  the  ordinance  in  the  law  side  of  the  courts 
is  not  as  important  to  them  as  it  is  to  the  general  public  that  the  usual 
and  ordinary  procedure  common  to  all  olTenses  be  followed.  As  was 
said  in  Davis  v.  American  Society  for  the  Prevention  of  Cruelty  to 
Animals.  75  N.  Y.  362:  "If  this  action  could  be  maintained  in  this 
case,  then  it  could  in  every  case  of  a  person  accused  of  a  crime,  where 
the  same  serious  consequences  would  follow  an  arrest ;  and  the  trial 
of  offenders,  in  the  constitvitional  mode  prescribed  by  law,  could  for- 
ever be  prohibited.  A  person  threatened  with  arrest  for  keeping  a 
bawdy-house,  or  for  violating  the  excise  law,  or  even  for  the  crime 
of  murder,  upon  the  allegation  of  his  innocence  of  the  crime  charged 
and  of  the  irreparable  mischief  which  would  follow  his  arrest,  could 
always  draw  the  question  of  his  guilt  or  innocence  from  trial  in  the 
proper  forum.  An  innocent  person,  upon  an  accusation  of  crime,  may  be 
arrested  and  ruined  in  his  character  and  property,  and  the  damage 
he  thus  sustains  is  darlinnin  absque  injuria  unless  the  case  is  such 
that  he  can  maintain  an  action  for  malicious  prosecution  or  false  im- 
prisonment. He  is  exposed  to  the  risk  of  such  a  damage  by  being  a 
member  of  an  organized  society,  and  his  compensation  for  such  risks 
may  be  found  in  the  general  welfare  which  society  is  organized  to 
promote." 


Cll.    4)  PEEVENTION  '.-F  CRIMES  AXD   PROCEEDINGS-  399 

W'i  do  not  wish  to  be  understood  as  laying  down  an  unl)ending 
rule  to  the  effect  that  equity  will  never  interfere  and  restrain  the 
enforcement  of  ordinances  criminal  in  their  nature,  for,  as  was  said 
by  Mr.  Justice  Field  in  Re  Sawyer,  125  U.  S.  200,  222,  31  L.  Ed.  402. 
8  Sup.  Ct.  Rep.  482:  "In  many  cases  proceedings  criminal  in  their 
character,  taken  by  individulas  or  organized  bodies  of  men.  tending, 
if  carried  out.  to  despoil  one  of  his  property  or  other  rights,  may  be 
enjoined  by  a  court  of  equity."  This  is  not  a  case  falling  within  the 
exceptions  named  by  Justice  Field.  Here  the  city  of  Bisbee,  through 
its  ofBcers,  is  in  good  faith  endeavoring  to  enforce  a  penal  ordinance 
passed  under  the  belief  that  it  was  a  bow  fide  exercise  of  legislative 
power.  Had  it  been  made  to  appear  that  the  common  council  of  the 
city  of  Bisbee,  "under  the  pretense  of  seeking  the  good  of  that  particular 
portion  of  society  which  is  intrusted  to  its  supervision,"  was  attacking 
the  vested  property  rights  of  the  appellees,  a  different  solution  of  this 
case  would  be  necessary — equity  would  disregard  the  form  of  the 
transaction  and  consider  its  real  purpose  and  substance.  Before  an 
injunction  will  issue  to  restrain  officers  from  making  an  arrest  for  an 
alleged  violation  of  law,  the  arrest  must  not  only  be  illegal,  but  must 
be  accompanied  by  interference  with  property  rights.     22  Cyc.  905. 

It  might  develop  in  a  trial  in  the  proper  courts  that  foreign  insurance 
companies  that  have  paid  to  the  state  the  percentage  provided  for  in 
paragraph  813,  Revised  Statutes  of  Arizona  of  1901,  have  a  property 
right  to  carry  on  the  business  of  insurance  in  all  parts  of  the  state 
without  additional  burdens  in  the  way  of  licenses  on  their  agents,  yet 
it  cannot  be  that  appellees  have  a  vested  property  right  to  transact  that 
business.  Their  agency  may  be  revoked  at  any  time.  They  have  no 
investment  in  the  insurance  business  that  may  be  ruined  or  depreciated. 
Their  sole  stock  in  trade  is  the  right  to  solicit  insurance  and  collect 
premiums.  The  loss  sustained  by  the  appellees  by  reason  of  a  cessation 
of  work  during  the  time  required  to  test  the  ordinance  in  the  proper 
courts  is  purely  speculative.  In  any  event,  at  the  end  of  such  litigation 
they  will  have  their  property— the  right  to  solicit  msurance— unimpair- 
ed, save  the  contingency  of  its  revocation  by  their  principals.  The  only 
loss  they  are  likely  to  suffer  is  the  commissions  on  policies  lliat  they 
might  ha/ve  written  in  the  interim. 

The  judgment  of  the  trial  courts  is  reversed,  and  the  case  remanded, 
with  direction  that  the  complaint  be  dismissed. 


400  PEEVENTION  OF  CRIMES  AND  PEOCEEDINGS.     (Part    1 


HORSE  SHOE  CLUB  v.  STEWART. 

(Supreme  Court  of  Missouri,  1912,  242  Mo.  421,  146  S.  W.  1157.) 

Fkrriss,  p.  J. — Bill  for  injunction  filed  in  the  circuit  court  of  tiic 
city  of  St.  Louis  in  November,  1907,  by  the  Modern  Horse  Shoe  Club, 
a  corporation  organized  under  the  statutes  relating  to  fraternal  and 
benevolent  organizations,  and  against  the  members  of  the  board  of 
police  commissioners  of  the  city  of  St.  Louis,  the  chief  of  police,  and 
one  Gaffney,  captain  of  police,  commanding  in  the  eighth  police  dis- 
trict of  said  city. 

The  bill  alleges  that  the  plaintifi:'  is  authorized  to  maintain  and. 
does  maintain  on  the  premises,  number  2309  Chestnut  street,  in  said 
city,  a  club  house,  consisting  of  twelve  rooms,  with  furniture,  fixtures 
and  appurtenances ;  that  the  membership  of  the  club  is  limited  to  male 
negro  citizens  of  said  city  of  good  moral  character,  who  believe  in  the 
teachings  and  principles  of  good  government,  and  that  its  members 
are  and  were  at  all  times  so  qualified ;  that  each  member  paid  an  initia- 
tion fee  of  one  dollar,  and  dues  of  one  dollar  every  three  months ; 
that  the  expense  of  maintaining  the  club  is  derived  from  the  fees  and 
dues  aforesaid,  and  from  the  distribution  of  food  and  drink  furnished 
to  its  members ;  that  in  order  to  maintain  itself  and  pay  its  expenses 
and  indebtedness  it  is  necessary  that  plaintifif  should  be  enabled  to 
furnish  its  members  with  club  accommodations  and  facilities,  and  dis- 
pose of  its  supplies  on  hand  to  its  members ;  that  on  several  occasions 
the  defendants  raided  and  caused  to  be  raided  the  club  house  and 
premises,  and  wrongfully  and  wantonly,  and  without  process  of  law. 
arrested  and  caused  to  be  arrested  members  of,  said  club  under  the 
false  charge  of  vagrancy ;  that  said  defendants  have  threatened  and  are 
now  threatening  to  arrest  each  and  every  one  of  plaintifPs  members 
found  in  said  club  house,  and  prosecute  them  under  the  false  charge 
of  idling;  that  by  so  doing  they  have  terrorized  the  members  of  the 
club  and  prevented  them  from  using  and  enjoying  the  club  and  its 
facilities ;  that  the  defendants  have  caused,  and  are  now  causing 
daily,  the  police  officers  of  the  city  to  visit  ihe  premises  of  the  club, 
without  any  reason  therefor,  and  for  the  only  purpose  of  terrorizing- 
the  members  of  said  club  and  disrupting  said  organization;  that  de- 


(ll.    4)  PREVENTIOX  OF  CRIMES  AND   PROCEEDINGS.  401 


fendants  are  threatening  to  continue  said  illegal  raids  and  unlawful 
arrests  so  long  as  plaintiff  operates  its  club  house,  and  have  ordered 
^he  officers  of  plaintiff  to  close  its  said  club  house  under  threat  of 
arrest  and  prosecution.  Plaintiff"  further  alleges  that  its  organization 
was  made  in  good  faith ;  that  it  maintains  its  club  house  in  good  faith, 
that  at  no  time  has  anything  unlawful  or  improper  occurred  therein ; 
that  its  members  are  not  vagrants,  but  law-abiding,  industrious  and 
hard-working  men,  and  that  they  only  enjoy,  and  will  be  permitted  to 
enjoy,  such  privileges  as  plaintiff  is  authorized  to  furnish  them  by  the 
terms  of  its  charter,  and  that  plaintiff  has  at  no  time  exceeded  its 
rights  under  its  charter;  that  if  defendants  are  permitted  to  carry 
their  said  illegal  threats  into  effect,  the  result  will  be  irreparable  dam- 
age to  plaintiff,  and  will  deprive  plaintiff's  members  of  the  rights  and 
privileges  to  which  membership  in  plaintiff's  organization  entitles 
them,  and  in  the  enjoyment  of  which  they  have  a  right  to  be  protected 
by  law. 

Wherefore  plaintiff  prays  a  perpetual  injunction  against  the  de- 
fendant, restraining  them  from  in  any  way  molesting  or  interfering 
with  plaintiff's  members,  officers  or  agents  in  or  about  said  club,  be- 
cause of  their  being  there,  or  on  any  false  and  pretended  charge  of 
vagrancy. 

On  the  filing  of  this  petition  a  temporary  injunction  was  issued  as 
prayed  for. 

The  answer  of  the  defendants  denies  each  and  every  allegation  in 
the  petition,  and  for  further  answer  alleges  that  plaintiff  is  not  the 
real  party  in  interest ;  that  the  plaintiff  does  not  come  into  a  court  of 
equity  with  clean  hands ;  that  the  pretended  plaintiff  corporation  was 
not  and  has  not  been,  up  to  the  filing  of  this  suit,  conducted  as  a  benevo- 
lent, religious,  scientific,  fraternal-beneficial,  or  educational  institution 
or  corporation,  but  for  the  purpose  of  evading  the  statutes  of  the 
State  and  the  ordinance  of  the  city  of  St.  Louis  relating  to  dramshops 
and  the  sale  of  intoxicating  liquors ;  that  the  said  pretended  club  was 
constantly  being  conducted  for  the  aforesaid  unlawful  ends,  up  to 
the  time  of  the  filing  of  this  suit;  that  said  club  has  frequently  been 
resorted  to  by,  and  has  been  the  common  lounging  place  and  rendezvous 
of  ex-convicts,  thieves,  vicious  and  dissolute  women  and  other  criminal 
characters  of  the  negro  race,  and  that  ihc  said  pretended  club  is  con- 
trolled and  operated   for  purpose  of  private,  pecuniary  gain   by  one 

1  Eq.— 26. 


402  PREVENTION  OF  CRIMES  AND  PROCEEDINGS.    (PcU't    1 

Ollie  Jackson,  with  the  aid  and  assistance  of  persons  to  defendants 
unknown,  and  was  organized  by  him  shortly  after  his  release  from 
serving  a  term  in  the  State  penitentiary ;  that  prior  to  and  up  to  the 
filing  of  plaintiff's  petition,  said  premises  were  the  nightly  scene  of 
gambling,  disturbances  of  the  peace,  and  violations  of  the  laws  of  the 
State  relating  to  the  sale  of  liquor,  and  was  not  a  bona  fide  club,  con- 
ducted for  the  sole  use  and  benefit  of  its  members,  and  that  said  pre- 
tended club  has  since  the  date  of  its  organization,  been  what  is  popular- 
ly known  as  a  lid-lifting  club,  and  ought  not  to  be  protected  by  the 
court. 

To  this  answer  plaintiff  filed  a  general  denial. 

The  cause  was  heard  at  great  length  upon  the  facts,  at  the  con- 
clusion of  which  the  court  rendered  a  decree  dismissing  the  bill  as  to 
all  the  defendants  except  Gaffney,  and  perpetually  enjoining  defendant 
Gaffney,  his  successors  in  office  and  subordinates,  and  the  officers  and 
men  of  the  police  force  under  them,  from  raiding  or  arresting,  or  in 
any  way  molesting  or  interfering  with,  plaintiff's  members,  its  officers, 
agents,  employees  or  servants,  while  in  or  about  plaintiff's  club  house 
and  premises,  solely  because  of  their  being  there,  or  from  arresting 
on  the  premises  of  plaintiff  said  members  on  any  false  or  pretended 
charge  of  vagrancy.     Defendant  appeals. 

The  evidence  substantially  sustains  the  allegations  of  the  answer, 
and  shows  that  the  corporate  form  was  used  as  a  cloak  under  v/hich 
the  so-called  club  engaged  in  the  sale  of  liquor  in  violation  of  law. 
Practically  the  only  activities  conducted  in  the  club  consisted  in  the 
selling  of  liquor  and  card  playing.  Liquor  was  sold  over  a  counter 
in  a  room  fitted  up  like  an  ordinary  barroom,  and  was  sold  for  cash 
at  the  same  prices  charged  in  licensed  saloons.  Such  sales  were  con- 
ducted on  every  day  of  the  week,  including  Sunday,  and  all  night  long. 
The  evidence,  on  the  other  hand,  shows  that  the  police,  acting  under 
instructions  from  defendant  Gaffney,  attempted  to  break  up  this  club 
by  repeated  raids  and  arrests  made  for  that  avowed  purpose;  that 
members  were  arrested  as  vagrants,  and  the  charges  subsequently 
dismissed ;  that  such  arrests  were  made  not  for  the  purpose  of  prose- 
cution on  charges  of  vagrancy,  but  for  the  sole  purpose  of  breaking  up 
the  club.  It  further  appears  that  the  police  entered  the  premises 
peaceably,  quietly  and  without  opposition,  and  that  no  injury  was 
done  or  threatened  to  the  physical  property  of  the  club. 


Cll.    4)  PEEVEXTION  OF   CRIMES  AND    I'liOCEEDINGS.  -iUu 

The  learned  chancellor  who  tried  the  case  below  indicated  very 
clearly  in  his  opinion  that  he  regarded  the  testimony  sufficient  to 
forfeit  plaintiff's  charter  in  a  proper  proceeding  for  that  purpose,  but 
condemned  in  vigorous  language,  as  illegal,  the  methods  instituted 
by  the  police  to  break  up  this  establishment,  and  suggested  that  the 
proper  method  is  by  a  proceeding  in  (|uo  warranto,  tie  held,  properly 
that  in  the  city  of  St.  Louis  the  police  may,  without  a  warrant,  make 
an  arrest  upon  a  well  grounded  suspicion  that  a  crime,  either  felony 
or  misdemeanor,  has  been  committed.  He  was,  however,  of  the  opin- 
ion that  repeated  raids  and  arrests,  upon  charges  of  vagrancy,  which 
were  made  for  the  avowed  purpose  of  breaking  up  the  club,  and  not 
for  bona  fide  prosecution,  were  continuing  trespasses  which  equity 
should  enjoin,  even  conceding  the  truth  of  the  allegations  of  the  an- 
swer. 

Without  criticising  the  conclusions  reached  below  as  to  the  rights 
and  duties  of  the  police,  and  the  character  of  their  acts  complained  of, 
we  are  of  the  opinion  that  the  chancellor  did  not  give  sufficient  con- 
sideration to  the  question  preliminary  to  all  others,  i.  e.,  does  the 
plaintiff  show  that  its  own  conduct  has  been  such  as  to  justify  it  in 
asking  relief  in  equity  ?  In  other  words,  does  plaintiff  come  before  the 
court  with  clean  hands  regarding  the  matter  in  controversy?  This  is 
not  a  proceeding  instituted  in  behalf  of  individual  members  of  the 
club  who  claim  to  have  suft'ered  from  illegal  arrests  made  by  the  police. 
The  plaintiff  invokes  the  aid  of  the  court  of  equity  to  protect  it  in 
the  exercise  of  rights  which  had  been  granted  it  by  law.  Such  is  the 
distinct  claim  of  the  bill.  The  court  is  not  asked  to  punish  the  police 
officers  for  oppression  in  office,  nor  to  mulct  them  in  damages  for  in- 
juries to  the  rights  of  plaintiff  or  its  members.  Its  aid  is  invoked  to 
protect  plaintiff's  right  to  exercise  its  functions  as  a  clul)  under  the 
authority  of  its  charter. 

The  first  question  to  be  considered  is,  whether  such  right  ot  i)Iain- 
tiff  is  involved  in  this  controversy.  In  this  matter  we  must  be  govern- 
ed, not  by  the  allegations  of  the  bill  as  to  the  rights  of  plaintiff  under 
its  charter,  but  by  the  proof  as  to  what  rights  in  point  of  fact  are 
threatened  with  destruction  by  the  actions  of  the  police.  The  only 
"right"  which  plaintiff  has  exercised  and  desires  to  continue  to  exer- 
cise is  the  right  to  sell  liquor  in  violation  of  law.  If  tin-  cltorts  ol  the 
police  are  successful  and  result  in  breaking  up  the  ttstablisliini'nt.  this 


404  PBEVENTION  OF  CRIMES  AND  PEOCEEDINGS.    (Part    1 

is,  according  to  the  evidence,  the  only  substantial  privilege  that  will 
be  affected.  Therefore,  this  suit  in  effect  asks  the  court  to  protect 
plaintiff  in  its  continued  violation  of  law.  The  very  statement  of 
this  proposition  suggests  the  answer.  The  necessary  effect  of  this 
injunction  is  to  permit  the  plaintiff  to  continue  to  sell  liquor  with- 
out a  license,  and  otherwise  violate  the  law.  We  do  not  mean  to  say 
that  the  police  are  justified  in  resorting  to  illegal  means  to  break  up 
an  illegal  business,  but  we  do  mean  to  say  that  an  illegal  business  can- 
not invoke  the  aid  of  a  court  of  equity  to  continue  its  existence.  If 
''he  police  have  adopted  a  high  handed  and  even  illegal  method  of 
procedure,  the  law  affords  a  remedy,  either  by  prosecution  for  the 
crime  of  oppression  in  office  or  by  suit  for  damages.  If  the  legal  rights 
of  a  plaintiff  are  invaded,  and  there  is  no  adequate  relief  at  law,  a 
court  of  equity  will  protect  such  rights  by  injunction,  even  if  such 
protection  require  it  to  enjoin  acts  criminal  in  character.  The  primary 
question  is  not  whether  defendant  has  committed  crime,  or  whether 
he  is  a  trespasser.  The  first  pertinent  inquiry  is,  whether  plaintiff  has 
shown  itself  to  be  in  the  exercise  of  legal  rights  which  will  be  destroyed 
without  the  intervention  of  a  court  of  equity.  If  this  inquiry  is  an- 
swered in  the  negative,  the  relief  should  be  denied.  The  plaintiff  in 
preparing  its  bill,  very  properly  realized  that  it  must  show  that  the 
rights  for  which  it  was  seeking  protection  were  within  the  law.  It 
therefore  alleges  that  its  organization  was  made  in  good  faith;  that 
nothing  unlawful  or  improper  had  occured,  or  would  occur,  within  its 
club  rooms ;  that  its  members  were  law-abiding,  industrious,  hard-work- 
ing men,  and  that  they  enjoyed,  and  would  be  permitted  to  enjoy,  only 
such  privileges  as  plaintiff  was  authorized  to  furnish  by  the  terms  of 
its  charter,  and  that  plaintiff  has  at  no  time  exceeded  its  rights  under 
its  charter. 

And  what  is  the  threatened  injury?  Here  is  the  allegation  in  the  bill 
on  this  point :  "The  result  will  be  irreparable  damage  to  plaintiff, 
and  will  deprive  plaintiff's  members  of  the  rights  and  privileges  to 
which  membership  in  plaintiff's  organization  entitles  them,  and  in 
the  enjoyment  of  which  they  have  a  right  to  he  protected  by  lazu." 

The  bill  clearly  demands  protection  for  such  rights  only  as  are 
granted  plaintiff  by  its  charter.  The  case  breaks  on  this  point.  The 
evidence  not  only  does  not  sustain  these  allegations  of  the  bill,  but 


Cll.    4)  PREVENTION  OF  CRIMES  AND   PROCEEDINGS.  405 

shows  clearly,  and  without  substantial  dispute,  that  the  so-called  rights 
now  sought  to  be  protected  are  simple  violations  of  law. 

In  the  case  of  \\'eiss  v.  Herlihy,  23  App.  Div.  (N.  Y.)  608,  under 
facts  quite  similar  to  those  in  this  case,  the  court  uses  this  language, 
which  we  consider  entirely  proper  here:     '"This  plaintiff,   according 
to  the  testimony  made  to  appear  upon  this  record,  is  persistently  and 
flagrantly  using  these  premises  for  a  disorderly  house  in  violation  of  the 
statute.     He  asks  the  help  of  the  equitable  power  of  the  court  prac- 
tically for  the  purpose  of  permitting  him  to  continue  that  violation  of 
law.     It  is  apparent  that  an  injunction  could  have  no   other  effect, 
and  that  just  as  soon  as  the  observation  and  inspection  of  the  police 
was  withdrawn  from  this  place,  this  gambling  house  would  be  reopen- 
ed, to  the  scandal  and  inconvenience  of  the  neighborhood.     A  court  of 
equity  will  not  permit  its  process  to  be  perverted  to  any  such  purpose. 
Assume  that  the  legal  rights  of  this  plaintiff  are  being  infringed.     If 
that  be  true,  he  must  enforce  them  by  the  proper  proceedings  at  law, 
and  if  he  can  do  so,  undoubtedly  his  rights  will  be  protected  or  he  will 
be  recompensed   for  any  violation  of   them;  but   if   the   law   affords 
him  no  protection,  equity  will  certainly  not  help  him  by  putting  its 
hand  upon  the  ofificers  of  the  law  who  are  seeking  to  perform  their 
duty — although  possibly  in  a  manner  oppressive  to  this  plaintiff — and 
restraining  them  for  no  other  purpose  than  that  this  man  may  go  on 
with  his  violations  of  the  law  unmolested  and  unwhipped  of  justice." 
To  the  same  general  effect  are  Beck  v.   Flournoy  Live-Stock  Co., 
65  Fed.  30;  Pon  v.  Wittmen,  147  Cal.  280;  Pittsburg  Ry.  Co.  v.  Town 
of  Crothersville,  159  Ind.  330. 

What  we  say  in  this  opinion  cannot  be  construed  as  a  justification 
of  illegal  methods,  if  any,  adopted  by  the  police.  As  a  court  of  equity, 
we  refuse  relief  to  plaintiff,  not  because  some  of  its  members  are  bad 
men;  not  because  its  manager  and  practical  owner  is  an  ex-convict; 
not  merely  because  the  evidence  shows  good  grounds  to  forfeit  its 
charter;  not  because  we  justify  the  action  of  the  police;  but  because 
the  plaintiff  does  not  come  into  court  with  clean  hands  concerning 
the  very  subject-matter  of  this  controversy,  namely,  its  legal  rights 
under  its  charter,  and  because  it  is  not  the  province  of  equity  to  assist 
a  wrongdoer  in  violating  the  law. 

The  judgment  is  reversed  and  the  bill  dismissed.  Kcnnisli  and 
Brown,  JJ.,  concur. 


SELECTED 

CASES  ON  EQUITY 


BY 

GEORGE  L.  CLARK 

Author  of  " Principles  of  Equity  ' 


PART  II— CHAPTER  V. 


1921 

E.   W.  STEPHENS  PUBLISHING  COMPANY 

Columbia,  Missouri 


Copyright  1921 

BY 

George  L.  Clark. 


TABLE  OF  CONTENTS 


PART  II. 

CHAPTER  V. 

Trusts  1 

Section  1.     In  General — Compared  with  Similar  Relations   1 

Section  2.    Essentials  to  the  Creation  and  Existence  of  the  Trust  Re- 
lation     '^^ 

Section  3.     Nature  of  Cestui's  Interest  65 

Section  4.     Resulting  and   Constructive   Trusts    79 

Section  5.     Transfer  of  Trust  Property   134 

Section  6.     Duties  of  a  Trustee   167 


(III) 


TABLE  OF  CASES 


Abbott,  Huling  v. 143 

Acker  v.  Priest 79 

Alden.    Waterman   v.    193 

Aldrich    v.    Aldrich    30 

Allen,  Smith  v. 134 

Amer.  Nat'l  Bank  v.  Fidelity  & 

Dep.   Co.   73 

Badgley    v.    Votrain    33 

Bakewell,   Reyburn  v. 64 

Barker  v.   Smiley 152 

Barkley  v.  Donnelly 49 

Barnes'   Adm'r,  Jewell  v. 41 

Barrow,  Gun  v. 66 

Beaver  v.   Beaver 60 

Bellamy,  In  re 157 

Blackiston,    Rhoades   v.    159 

Bloomington  Lib.   Ass'n, 

Mason    v.    55 

Bohle  V.  Hasselbroch 126 

Bradford,  Tillinghast  v. 161 

Bryant  v.   Craig 194 

Bushnell,   Wylie   v.    179 

Bushong  V.   Taylor 165 

Butcher's  Bank,  Daly  v. 12 

Caldwell  v.  Caldwell 108 

Capelle,    O'Neill   v.    107 

Cargill,    Whitehouse   v.    23 

Carll  V.   Emery 95 

Carlton,  Keyes  v. 172 

Cartwright  v.  Wise 88 

Chamberlain  v.  Stearns 57 

Chapman  v.   Shattuck 24 

Chiles  V.   Garrison 5 

City  of  St.  Louis  v.  Keane 166 

Clayton   v.    Roe    69 

Clogan,    Hoeffer   v.    44 

Cornwell  v.  Orton 149 

Cox  V.   Walker 68 

Craig,   Bryant  v. 194 

Crandall,  Woodhouse  v. 121 

Daily  v.   Butchers'  Bank 12 

Davis,   In  re 91 

Dean  v.   Northern  Trust  Co. 63 

Dewey,  Thayer  v. . 189 

Dix,  Shoe  &  Leather  Co.  v. 76 

Doheny,   Gower  v. 138 

DoniK'liy,    P.arkley   v.    49 

Donnelly,   Williams   v.   142 

Doyle    v.    Murphy    19 


Drew,   Everett  v. 

Dufif  V.   Randall 

Dumaresly,    Fischli   v. 


Edwards  v.  Welton 

Ellerson  v.  Westcott 

Elliott  V.  Landis  Machine  Co.  _. 
Emery,   Carll  v.   

Everett  v.  Drew 

Ewing  V.  Parrish 

Ewing  V.  Shannahan 


Fidelity  &  Dep.  Co.,  Amer.  Nat'l 
B'k  V. 

Finney,  Murdock  v. 

Fischli  v.  Dumaresly 

Frazier  v.   Jeakins   


4 
140 
133 

175 
114 
70 
95 
4 
65 
70 


72 
145 
133 
130 


Garrison,   Chiles   v.    5 

Glidewell  v.  Spaugh 94 

Gower  v.   Doheny  138 

Gun   v.    Barrow    66 

Haigh  V.   Kaye 104 

Hale,   Kellogg  v.   1 

Hall   V.    Hall   88 

Hall,  Matter  of 184 

Hasselbroch.    Bohle  v.   126 

Heyworth,  Tinkham  v. 10 

Highley,   Pugh  v. •— -   139 

Hoeffer   v.   Clogan 44 

Howlett,  Lee  v. 146 

Hoyle,  Turner  v.   75 

Hughes,    Whittlesy   v.    197 

Huling  V.  Abbott 143 

Jackson,  Porter  v. 21 

Jackson,  Tyson  v. 29 

James  v.   Newton 27 

Jamison  v.  Zausch 155 

Jeakins,   Frazier  v. 130 

Jenkins,    McFadden  v.   20 

Jewell   v.    Barnes'   Adm'r.   41 

Johnson,  Nebraska  Nat'l  Bk.  v.__  118 

Johnston    v.    Spicer    150 

Katz  V.   Miller 198 

Kaye,  Haigh  v. 104 

Kcanc,  City  of  St.  Louis  v. KiC) 

Kellogg  V.  Hale I 

[   Kcj'cs  V.   Carleton   J72 

Knox  College,  Moshlier  v. 138 

(v) 


VI 


TABLE   OF    CASES. 


Landis  Machine  Co.,  Elliott  v.  __     70 

Lee  V.   Howlett   146 

Leeper  v.  Taylor  32 

Lockren  v.  Rustan ., 37 

Long  V.  Mechem 83 

Lorenz   v.    Weller    58 

McCullough  V.  McCullough 187 

McDonough  v.  O'Neil 86 

McFadden  v.  Jenkins 20 

McFall,  Moore  v. 168 

Markel  v.  Peck 198 

Mason  v.   Bloomington  Lib. 

Ass'n    55 

Mechem,   Long  v.    82 

Mercantile   Co.,   Young   v. 2 

Merrill,  Tillinghast  v. 181 

Mescall  v.  Tully 106 

Miller,    Katz    v.    198 

Mitchell's  Adm'r  v.  Trotter 192 

Molasky,  Zeideman  v. 18 

Moore  v.   McFall  168 

Moshier  v.  Knox  College 138 

Mulholland's    Estate,    In   re 191 

Murdock  v.  Finney 145 

Murphy,  Doyle  v. 19 

Nebraska  Nat'l  Bk.  v.  Johnson  __  118 
New  Jersey  Title  etc.  Co.  v. 

Parker    171 

New  Orleans  etc.  Co.,  Richardson 

V. 123 

Newton,  James  v.   27 

Northern  Trust  Co.,   Dean  v.  __     63 

O'Neill  V.   Capelle 107 

O'Niel,    McDonough  v.    86 

Orton,   Cornwell  v. 149 

Parker,    New    Jersey    Title    etc. 
Co.    V.    171 

Parrish,   Ewing  v.   65 

Payne,  Wright  v. 6 

Peck,  Markel  v.  198 

Perry   v.    Strawbridge    113 

Peters,   Rossow  v.   83 

Pfuntner,  Pike's  Peak  Co.  v. 127 

Phillips  V.    Phillips    111 

Pike's  Peak  Co.  v.  Pfuntner 127 

Porter  v.  Jackson 21 

Pratt,   Stone  v.   26 

Priest,    Acker    v.    79 

Pugh  V.    Highley 139 

Quiniby  v.  Quimby 50 

Randall,  Duff  v. 140 

Reilly,    Schafer   v.    141 

Reyburn  v.  Bakewell 64 

Rhoades  v.  Blackiston 159 

Rickardson  v.  N.  O.  etc.  Co. 123 


Roe,   Clayton  v.   69 

Rossow  V.  Peters 83 

Rustan,  Lockren  v. 37 

Schafer  v.  Reillv 141 

Scholle  V.  Schoile 132 

Shannahan,  Ewing  v. 70 

Shattuck.   Chapman  v.   24 

Shoe  &  Leather  Co.  v.  Dix 76 

Simpson  v.  Waldby 14 

Skiles  V.  Switzer 149 

Smiley,    Barker   v.   152 

Smith   V.   Allen   134 

Spaugh,    Glidewell   v.    94 

Spicer,  Johnston  v. 150 

Starr,  Sturge  v. 142 

Stearns,  Chamberlain  v. 57 

Steib    V.    Whitehead    162 

Stone   V.    Pratt    26 

Sturge    V.    Starr    142 

Strawbridge,    Perry  v.    113 

Switzer,  Skiles  v. 149 

Taylor,    Bushong  v.    165 

Taylor,  Leeper  v. 32 

Tennison  v.   Tennison   116 

Thayer   v.    Dewey   189 

Tillinghast  v.   Bradford 161 

Tillinghast  v.  Merrill 181 

Tinkham  v.   Heyworth 10 

Trotter.  Mitchell's  Adm'r  v. 192 

Tully,  Mescall  v. 106 

Turner   v.    Hoyle   75 

Tyson  v.  Jackson 29 

Van  der  Volgen  v.  Yates 99 

Votrain,  Badgley  v. 33 

Wagner  v.  Wagner 176 

Waldby,  Simpson  v. 14 

Walker,    Cox    v.    68 

Waterman  v.   Alden   193 

Weller,  Lorenz  v. 58 

Welton,   Edwards  v.   175 

West,  In  re 97 

Westcott,  Ellerson  v. 114 

Whitehead,  Steib  v. 163 

Whitehouse  v.  Cargill 23 

Whittlesy  v.   Hughes   197 

Williams   v.    Donnelly    142 

Wise,   Cartwright  v.   88 

Woodhouse  v.  Crandall 131 

Wright  V.   Payne 6 

Wylie  V.   Bushnell  179 

Yates,  Van  der  Volgen  v. 99 

Young  V.  Mercantile  Co. 2 

Zausch,    Jamison    v.    155 

Zeideman  v.  Molasky 18 


CASES  ON  EQUITY 

PART  II. 
CHAPTER  V.  TRUSTS 


SECTION  I.  IN  GENERAL— COMPARED  WITH  SIMILAR 

RELATIONS. 


KELLOGG  V.  HALE\ 

(Supreme  Court  of  Illinois,  1883,  108  111.  164.) 

Craig,  J.  .  .  .  The  trust  here  was  not  in  writing.  The 
deed  was  absohite  in  terms,  and  purported  to  convey  the  title  to 
Peck,  but  when  the  transaction  is  viewed  in  the  Hght  of  the  evidence, 
it  appears  that  the  property  was  conveyed  to  Peck  in  trust.  He 
was  to  hold  the  title,  lease  the  property,  collect  the  rents,  sell  or  re- 
convey,  or  make  such  disposition  of  the  property  as  Kellogg  might 
order.  Was  this  such  a  trust  as  the  Statute  of  Uses  would  execute? 
The  answer  to  this  question  may  be  found  in  the  former  decisions 

of  this  court. 

In  Meacham  v.  Steele,  93  111.  146,  where  a  question  of  this  character 
was  under  consideration,  it  is  said :  "Where  the  conveyance  imposes 
on  the  trustee  active  duties  with  respect  to  the  trust  estate,  such  as, 
to  sell  and  convert  into  money,  or  to  lease  the  same  and  collect  the  rents, 
issues  and  profits  thereof,  and  pay  them  over  to  the  beneficiary,  it 
creates  a  trust  which  the  statute  does  not  execute."  Plere  Peck, 
the  trustee,  had  the  entire  charge  of  the  property.  It  was  his  duty  to 
rent,  and  collect  the  rents,  pay  the  taxes,  keep  up  the  repairs,  and  in 
addition  to  this,  upon  request,  sell  and  convey  the  property.  The 
facts  seem  to  bring  the  case  directly  within  the  rule  announced  in  the 
case  cited. 

In  Kirkland  v.  Cox,  94  111.'  400,  the  effect  of  the  Statute  of  Uses 
was  under  consideration,  and  it  was  held  where  an  estate  is  conveyed  to 

1  The  statement  of  facts  has  usually  been  omitted.  Where  parts  of  the 
opinion  have  been  omitted,  such  omission  has  been  indicated  thus:     .     .     . 

(1) 


2  TRUSTS.  (Part  2 

one  person,  for  the  use  of,  or  upon  a  trust  for,  another,  and  nothing 
more  is  said,  the  statute  immediately  transfers  the  legal  estate  to  the 
use,  and  no  trust  is  created,  although  express  words  of  trust  are 
used.  But  this  has  reference  only  to  passive  simple  or  dry  trusts. 
In  such  case  the  legal  estate  never  vests  in  the  feoffee,  but  is  instan- 
taneously transferred  to  the  cestui  que  use  as  soon  as  the  use  is  declared 
The  facts  surrounding  the  conveyance  in  this  case  do  not  bring  the 
trust  within  what  may  be  called  a  passive,  simple  or  dry  trust.  The 
duties  of  the  trustee  had  not  been  performed  under  the  trust  imposed 
by  the  deed  and  contract.  Those  duties  were  active,  and  so  continued 
until  the  lands  were  conveyed,  under  the  order  and  direction  of  Kel- 
logg. Perry  on  Trusts,  sec.  395,  in  speaking  in  regard  to  special 
or  active  trusts,  says:  "If  any  agency,  duty  or  power  be  imposed 
on  the  trustee,  as  by  a  limitation  to  a  trustee  and  his  heirs  to  pay 
the  rents  or  to  convey  the  estate,  or  if  any  control  is  to  be  exercised 
or  duty  performed  by  the  trustee,  .  .  .  the  operation  of  the 
statute  is  excluded,  and  the  trusts  or  uses  remain  mere  equitable  es- 
tates." But  the  citation  of  other  authorities  on  the  question  is  use- 
less. We  are  satisfied  that  the  deed  made  to  Peck  passed  the  title  to 
the  property  to  him,  unaffected  by  the  Statute  of  Uses.     .     .     . 


YOUNG  V.  MERCANTILE  TRUST  CO. 

(United  States  Circuit  Court,  1905,  140  Fed.  61.) 

Hazel,  D.  J.     The  bill  is  for  an  accounting.     .     .     . 

Complainant's  theory  is  that  the  defendant  was  depositary  and 
trustee,  and  hence  fiduciary  relations  existed  between  them  intitling 
complainant  to  an  accounting.  The  demurrant  contends,  on  the  other 
hand,  that  the  transaction  simply  amounted  to  a  naked  deposit,  by 
which  the  relations  of  bailor  and  bailee  were  established.  A  court  of 
equity  doubtless  has  plenary  power  to  determine  the  rights  and  lia- 
bilities arising  between  a  trustee  and  the  beneficiaries  of  a  trust.  It 
is  evident,  however,  that  the  general  allegation  of  trust  or  trustee- 
ship, together  with  the  object  and  purpose  of  its  creation,  is  not  here 
distinctly  or  sufficiently  averred.  It  is  pertinent  to  inquire,  what 
did  the  defendant  undertake  to  do  other  than  become  depositary  or 


Ch.    5)  COMPAEED    WITH    SIMILAR  RELATIONS.  3 

bailee?  The  character  of  the  trust,  its  extent  or  purpose,  and  whether 
in  writing  or  by  parol,  is  not  disclosed.  The  essential  elements  of  a 
trust,  viz.,  a  beneficiary,  a  trustee  other  than  the  beneficiary,  the  sub- 
ject-matter of  the  trust  relations,  and  surrender  of  the  property 
and  transfer  of  the  title  to  the  trustee,  are  not  well  pleaded.  The 
claim  that  the  orator  parted  with  his  property  to  the  United  States 
Shipbuilding  Company  upon  receiving  the  securities,  and  then  de- 
posited the  same  with  the  defendant  under  an  implied  arrangement 
that  such  securities  were  to  be  distributed  as  he  might  direct,  in  my 
judgment  was  not  sufficient  to  establish  such  express  or  implied  trust 
relations  as  would  warrant  the  interposition  of  a  court  of  equity. 
Certainly  it  would  seem  that  specific  and  definite  facts  to  warrant 
the  interference  of  a  trust  relation  should  have  been  pleaded,  in- 
stead of  merely  general  averments.  The  suggestions  that  the  de- 
murrer concedes  the  allegations  of  the  bill  is  not  entirely  correct, 
as  such  admissions  only  include  relevant  facts  such  as  are  well 
pleaded,  and  not  conclusions  of  law.  John  D.  Park  and  Sons  Co. 
V.  National  Wholesale  Druggists'  Ass'n,  175  N.  Y.  1,  67  N.  E. 
136,  62  L.  R.  A.  632,  96  Am.  St.  Rep.  578.  The  transaction,  as 
pleaded,  has  all  the  earmarks  of  a  mere  deposit,  and  not  of  a  trust, 
in  which  the  legal  title  has  passed  to  the  trustee,  and  where  the  cestui 
que  trust  has  the  beneficial  enjoyment.  United  States  v.  Union 
Pacific  Railroad  Co.,  98  U.  S.  619,  25  L.  Ed.  143.  "The  term  'trust'," 
says  Chancellor  Kent  in  Kane  v.  Bloodgood,  7  Johns.  Ch.  90,  11 
Am.  Dec.  417,  "is  a  very  comprehensive  one.  Every  deposit  is  a 
direct  trust.  Every  person  who  receives  money  to  be  paid  to  an- 
other, or  to  apply  to  a  particular  purpose,  is  a  trustee.  The  cases 
of  hirer  and  letter  to  hire,  borrower  and  lender,  pawner  and  pawnee, 
principal  and  agent,  are  all  cases  of  express  trust,  etc.  It  has  never 
been  held,  however,  that  these  and  the  like  cases  are  such  technical 
trusts  as  to  bring  them  within  our  hmited  equity  jurisdiction."     .     . 

My  conclusion   is   that   such    facts   and   circumstances   as   are   es- 
sential to  confer  jurisdiction  on  this  court  are  not  pleaded.     . 


TEUSTS.  (Part  2 


EVERETT  V.  DREW. 

(Supreme  Court  of  Massachusetts,  1880,  129  Mass.  150.) 

Morton,  J.  This  is  an  action  of  contract,  and  the  substantial 
allegations  of  the  plaintiff's  declaration  are,  that  the  defendant  made 
an  agreement  with  Elijah  C.  Drew  that  he  was  to  buy  a  parcel  of 
land,  to  take  the  deed  in  his  own  name,  and  to  execute  a  declaration 
that  he  held  it  in  trust  for  the  defendants,  to  pay  a  part  of  the  con- 
sideration with  money  furnished  by  the  defendants,  and  to  give  his 
own  note  and  mortgage  back  for  the  balance  thereof.  The  dec- 
laration also  alleges  that  Drew  purchased  land  of  the  plaintiff's 
wife  and  other  persons ;  that  he  paid  therefor  $10,000  with  money 
furnished  by  the  defendants ;  that  the  owners  made  a  deed  to  him, 
and  he,  at  their  request,  gave  his  note  and  a  mortgage  containing 
a  power  of  sale  to  the  plaintiff ;  that  the  plaintiff  foreclosed  said 
mortgage  by  a  sale;  that,  after  applying  the  proceeds  of  the  sale, 
there  remains  a  balance  due  on  said  note ;  and  that  the  defendants 
owe  the  plaintiff  the  said  balance  and  the  interest  thereon. 

The  plaintiff  contends  that  Drew  throughout  the  transaction  and 
in  giving  the  note  acted  as  the  agent  of  the  defendants,  and  that, 
as  the  note  is  not  a  negotiable  promissory  note,  he  had  the  right 
to  maintain  an  action  on  it  against  them  as  unknown  and  undisclosed 
principals. 

The  general  rule  is  well  established  that  if  an  agent,  acting  for 
his  principal,  makes  a  contract  without  disclosing  his  principal,  the 
latter  is  bound  by  the  contract.  Thomson  v.  Davenport,  2  Smith 
Lead.  Cas.  (5th  Am.  ed.)  358,  and  cases  cited.  He  is  bound  be- 
cause it  is  his  contract  made  through  another  person.  But  this  rule 
does  not  apply  in  the  case  at  bar.  Drew  v/as  not  the  agent  of  the 
defendants.  He  was  not  authorized  to,  and  did  not  in  fact,  make 
any  contract  for  and  on  behalf  of  them.  He  bought  the  land  and 
took  the  title,  he  gave  the  note  and  the  mortgage,  in  his  own  name 
and  for  his  own  behalf  as  trustee.  The  relations  between  him  and 
the  defendants  were  not  those  of  agent  and  principal,  but  of  trustee 
and  cestui  que  trust.    Such  a  relation  is  lawful,  and,  in  the  absence 


Cll.    5)  COMPAEED    WITH    SIMIL.A.R  RELATIONS.  5 

of  fraud,  does  not  ^'ender  the  ccstuis  que  trust  liable  to  suits  at 
law  upon  contracts  made  by  the  trustee  in  his  own  name. 

It  is  true  that  the  declaration  alleges  that  Drew  was  the  agent 
of  the  defendants.  But  it  also  alleges  the  specific  facts  which  show 
the  relations  between  the  parties,  and  those  facts  show  that  he 
was  not  an  agent.  The  allegations  that  he  was  an  agent  must  be 
regarded  as  mere  allegations  of  a  conclusion  of  law  which  are  not 
sustained  by  the  facts.  The  defendants'  demurrer  was  therefore 
rightly  sustained. 

Exceptions  overruled. 


CHILES  V.  GARRISON. 

(Supreme  Court  of  Missouri,  1862,  32  Mo.  475.) 

This  was  an  action  for  money  lent  by  the  plaintifif  to  defendants. 
The  answer  denies  the  loan,  and  denies  any  indebtedness  to  plain- 
tiff. At  the  date  of  the  alleged  loan  the  money  was  in  special  deposit 
with  the  defendants,  and  was  afterward  stolen  from  them.     .     .     . 

Bay,  J.  The  only  question  presented  by  the  record  in  this  case 
is  as  to  the  propriety  of  the  instruction  given  by  the  court.  If 
the  loan  was  complete  before  the  robbery,  then  the  loss  fell  upon 
the  defendants;  but  if,  under  and  by  virtue  of  the  terms  of  the 
contract,  anything  remained  to  be  done  to  vest  in  the  defendants 
the  right  to  the  money,  then  the  loss  was  incurred  by  the  plaintiff. 
We  think  no  question  can  arise  in  regard  to  the  delivery,  for  the 
money  was  already  in  the  custody  and  possession  of  the  defendants, 
having  been  previously  left  with  them  in  special  deposit. 

The  court  refused  all  the  instructions  asked  on  both  sides,  and 
gave  in  lieu  of  them  the  following: 

"If  the  jury  find  from  the  evidence  that  the  plamtift',  by  her 
agent,  William  G.  Chiles,  agreed  with  the  defendant  Garrison  for 
and  on  behalf  of  the  firm  of  Garrison  &  Hughes,  to  loan  to  them 
the  sum  of  eight  hundred  dollars,  and  that  Garrison  agreed,  on 
behalf  of  said  firm,  to  borrow  the  same,  and  that  the  money  was 
at  the  time  on  deposit  with  said  firm,  and  that  nothing  remained  to 
be  done  at  any  future  time  to  complete  the  loan,  the  jury  will  find 


6  TRUSTS.  (Part  2 

for  the  plaintiff;  but  if  it  was  only  agreed  that  the  money  should 
be  loaned,  and  it  was  further  agreed  thai  William  G.  Chiles,  or 
some  one  else  on  the  part  of  plaintiff,  should  go  to  defendants  to 
obtain  their  note  or  count  the  money,  or  both,  before  the  loan  was 
to  be  complete,  and  that,  before  the  giving  a  note  or  counting  the 
money,  the  safe  of  defendants  was  robbed,  without  the  fault  of 
the  defendants,  or  either  of  them,  and  the  money  stolen,  they  will 
find  for  the  defendants." 

Whether  the  loan  was  perfected  or  not  before  the  robbery,  was 
a  question  of  fact,  depending  upon  the  terms  of  the  contract  as  dis- 
closed by  the  evidence  in  the  cause,  and  the  instruction  very  properly 
submitted  it  to  the  jury.     .     .     . 

Upon  the  whole,  we  think  the  instruction  given  covers  the  law- 
of  the  case;  and  as  the  jury  have  passed  upon  the  facts,  we  see  no 
good  reason  to  disturb  their  verdict. 

With  the  concurrence  of  the  other  judges,  the  judgment  of  the 
court  below  will  be  affirmed. 


W^RIGHT  V.  PAYNE. 

(Supreme  Court  of  Alabama,   1878,  62  Ala.   340.) 

The  appellant,  William  H.  Wright,  brought  this  action,  on  the 
17th  day  of  November,  1874,  against  the  appellee,  Benjamin  ^. 
Paine,  as  the  administrator  de  bonis  non  of  the  estate  of  William 
O,  Winston,  deceased,  and  sought  to  recover  on  the  following  re- 
ceipts, to-wit : 

"Deposited   with   me,    for   safe   keeping,   by   William   H.   Wright, 

eight  hundred  and  five  dollars  ($805)  in  gold,  which  I  am  to  return 
whenever  called  for,  this  4tli  day  of  November,  1857. 

(Signed)  Wm.  O.  Winston. 

Upon  this  receipt  was  the  following  indorsements : 
"Presented  for  settlement,  April  20th,  1872. 

J.  N.  Winston, 
Administrator  of  estate  of  Wm.  O.  Winston.' 
The  second  receipt  is  as  follows : 


}} 


Ch.    5)  COMPAEED    WITH    SIMILAR  EELATIONS.  7 

"Received,  January  25,  1858,  of  \Vm.  H.  Wright,  forty  dollars 
ill  gold,  on  deposit,  to  be  paid  him  on  demand  ($40.)- 

(Signed)  W.O.Winston, 

Per  J.  N.  Winston." 
This  receipt  was  also  presented  to  the  administrator  on  the  20th 

of  April,  1872. 

The  original  complaint  contained  no  averment  of  demand,  but 
simply  charged  that  the  money  due  on  receipts  was  still  unpaid.  An 
amendment,  averring  a  demand  on  Winston  in  his  lifetime,  was  sub- 
sequently made.     .     .     . 

Brickell,   C.   J.     "In  the   ordinary   cases   of    deposits   of    money 
with   banking  corporations,   or   bankers,   the   transaction   amounts   to 
a  mere  loan  or  mutuum,  or  irregular  deposit,  and  the  bank  is  to 
restore,  not  the   same  money,   but  an  equivalent   sum,   whenever   it 
is  demanded."— Story  on  Bailments,   §  80;  Wray  v.  Tuskegee  Ins. 
Co.,  34  Ala.  58.    It  is  insisted  for  the  appellant,  there  is  a  distinction 
between  a  deposit  with  banks  or  bankers,  and  with  an  individual  not 
engaged  in  banking.     While  a  deposit  with  the  one,  not  expressed, 
or  shown  by  circumstances  to  have  been  a  special  deposit,  will  from 
the  nature  and  character  of  the  business  of  the  depositary,  and  its  usual 
course,  be  regarded  as  general,  creating  the  relation  of   debtor  and 
creditor— a  deposit  with  the  other  will  be  presumed,  in  the  absence 
of  evidence  to  the  contrary,  as  special,  creating  only  the  relation  of 
bailor  and  bailee.     The  authority  which  is  relied  on  to  support  the 
proposition,  does  not  seem  to  assert  it  so  broadly.     The  evidence  of 
the  deposit  in  that  case,  and  of  the  agreement  between  the  parties, 
was  verbal,  and  it  was  shown  that  they  stood  in  the  relation  of  em- 
ployer and  overseer,  the  latter  depositing  bank  notes  with  the  former 
for  safe-keeping.     The  relation  of  the  parties,  the  expressed  purpose 
of  the  deposit,  the  fact  that  the  depositary  was  not  engaged  in  any 
commercial  business,  were  circumstances  which  the  court  held  were 
proper  for  the  consideration  of  the  jury,  in  determining  whether  the 
deposit  was  general  or  special.     Duncan  v.   Magette,  25   Tex.  246. 
Beyond  this  we  do  not  understand  the  decision  to  extend,  and  to 
this  extent  it  is  consistent  with  our  own  case  of  Derrick  v.  Baker, 
9  Port.  362.    But  neither  case  asserts  that  the  character  of  business 
in  which  the  depositary  may  be  engaged,  necessarily  determines  the 
character  of  the  deposit. 


S  TRUSTS.  (Part  2 

Contracts,  verbal  or  written,  are  interpreted  in  the  light  of  the  cir- 
cumstances surrounding  the  parties,  and  their  relations  to  each  other 
when  they  are  formed.  These  circumstances  and  relations,  often 
aid  materially  in  ascertaining  the  intention  of  the  parties,  and  when 
the  character  of  the  contract  is  uncertain,  when  its  expressions  are 
inapt,  may  enable  the  court  more  satisfactorily  to  determine  what  are 
the  obligations  it  imposes  or  the  rights  it  confers.  If  there  was 
nothing  more  in  a  transaction  resting  entirely  in  parol,  than  that  a 
farmer,  having  money,  should  deposit  with  a  neighbor  engaged  in 
the  like  and  no  other  pursuit,  or  in  no  business  requiring  the  frequent 
use  of  money,  and  the  deposit  was  expressed  to  be  for  safe-keeping, 
the  jury  within  whose  province  it  would  lie  to  determine  whether  the 
deposit  was  general  or  special,  would  probably  conclude  that  it  was 
special,  that  the  purpose  of  the  depositor  was  the  safe-keeping  of 
the  money,  and  the  duty  and  liability  of  the  depositary  was  to  keep 
safely.  But  if  the  depositary  was  a  merchant,  whose  business  re- 
quired the  frequent  use  of  money,  and  he  was  in  the  habit  of  receiving 
money  on  deposit,  there  would  be  more  hesitation  in  pronouncing 
the  deposit  special — that  the  depositary  could  not  use  the  money — 
that  the  title  to  it  remained  in  the  depositor,  and  if  it  was  lost,  he 
must  bear  the  loss,  unless  fraud  or  gross  negligence  could  be  im- 
puted to  the  depositary. 

The  transaction  between  these  parties  does  not  rest  in  parol — the 
contracts  are  in  writing,  and  if  the  circumstances  under  which  they 
were  made,  the  relations  then  existing  between  the  parties,  or  any 
other  extrinsic  fact  which  could  properly  be  considered,  would  aid 
in  determining  the  character  of  the  contracts,  no  evidence  has  been 
given  of  them.  The  construction  they  must  bear,  depends  wholly  on 
the  terms  in  which  they  are  expressed. 

The  first  in  point  of  time,  expresses  a  deposit  of  a  certain  sum  in 
gold,  and  that  the  purpose  is  for  safe  keeping,  and  that  it  is  to  be 
returned  whenever  called  for.  The  gold  is  not  shown  to  have  been 
in  a  sealed  package,  in  a  bag,  or  in  a  box  or  chest,  nor  marked  so  as 
to  be  capable  of  being  separated  from  other  like  coin,  and  of  identifica- 
tion, nor  is  the  character  or  denomination  of  the  coin  stated.  The 
promise  is  unconditional,  to  return  it  whenever  called  for — there  is 
no  contingency  provided  by  the  contract,  in  which  obedience  to  this 
promise  can  be  excused.  If  the  transaction  was  with  a  bank,  banker, 
or  a  dealer  in  money,  or  with  a  merchant,  or  other  person  engaged 


Ch.    5)  COMPARED    WITH    SIMILAR  RELATIONS.  9 

in  business  requiring  the  frequent  use  of  money,  and  in  the  habit  of 
receiving  money  on  deposit,  the  presumption  would  be,  probably,  that 
the  writing  impHed  a  general,  not  a  special  deposit.  Such  a  deposit 
would  be  most  advantageous  to  the  depositor — the  gold  would  cease 
to  be  his  property,  and  if  lost  by  any  casualty,  whatever  may  have 
been  the  diligence  of  the  depositary,  the  obligation  to  repay  it  in 
kind  would  be  absolute.  The  presumption  would  also  be  consistent 
with  the  course  and  usages  of  business. — Dawson  v.  Real  Estate  Bank, 
5  Pike  (Ark.),  297;  Foster  v.  Essex  Bank,  17  Mass.  479  (9  Am. 
Dec.  168)  ;  Commercial  Bank  v.  Hughes,  17  Wend.  94.  The  writing 
expressing  that  the  purpose  of  the  deposit  was  safe  keeping,  would 
scarcely  be  sufficient  to  repel  the  presumption.  But  we  are  without 
the  aid  of  evidence  of  the  character  of  the  business  in  which  the  de- 
positary was  engaged,  or  of  any  extrinsic  fact  which  would  aid  in 
the  construction  of  the  writing.  Every  clause  and  word  of  a  con- 
tract, must  have  assigned  to  it  some  meaning  if  possible  and  it  is 
not  to  be  presumed  parties  have  deliberately  or  carelessly  employed 
idle,  unnecessary,  or  unmeaning  words  and  expressions.  Construing 
the  instrument  by  its  words  alone,  we  conclude  that  the  safe  keeping 
of  the  gold  was  the  purpose  of  the  deposit,  and  the  duty  imposed 
was  safely  to  keep,  and  to  return  in  individuo  when  demanded.  The 
deposit  was  therefore  special,  not  general. 

The  other  writing  is  in  form  of  a  receipt,  and  expresses  the  gold 
is  payable  on  demand.  The  only  duty  imposed  is  the  payment  on 
demand.  There  is  not,  as  in  the  former  writing,  an  express  agree- 
ment to  keep  safely,  nor  any  words  which  are  inconsistent  with  a 
loan,  payable  on  request.  That  the  money  is  stated  to  be  received 
on  deposit,  was,  most  probably,  intended  to  indicate  that  it  was  not 
a  loan  bearing  interest.  Giving  due  significance  to  all  the  words  of 
the  writing,  and  that  its  terms  import  a  payment,  not  a  return  of  the 
identical  money,  the  contract  is  not  a  bailment,  but  a  loan  of  money, 
payable  presently  or  on  request — a  written  promise  for  the  payment 
of  a  certain  sum  of  money,  absolutely  and  unconditionally,  imposing 
no  other  duty  or  obligation  than  payment,  is  a  promissory  note. — 
Woodfolk  V.  Leslie,  2  Nott  &  Mc.  585.  A  promissory  note,  or  other 
writing  for  the  payment  of  money  on  request,  or  presently,  or  on 
demand,  is  subject  to  the  statute  of  limitations,  and  the  bar  of  the 
statute  is  computed,  not  from  the  day  of  demand,  but  from  the  date 
of  the  note  or  writing.— Aug.  ijm.  §  95;  Owen  v.  Henderson,  7  Ala. 


IQ  TRUSTS.  (Part  2 

641 ;  McDonnell  v.  Br.  Bank,  20  Ala.  313;  Kimbro  v.  Waller,  21  Ala 
376.  In  all  its  material  features,  the  writing  we  are  construing  is  not 
distinguishable,  in  legal  effect,  from  that  which  was  considered  in 
Owen  V.  Henderson,  supra,  and  held  from  the  day  of  its  date,  within 
the  operation  of  the  statute  of  limitations.  Adhering  to  that  decision, 
we  must  pronounce  that  the  action,  so  far  as  founded  on  this  instru- 
ment, was  within  the  bar  of  the  statute.  The  oral  declarations  made 
by  Winston  in  1869,  if  clearly  proved,  and  if  regarded  as  an  unqual- 
ified admission  of  an  existing  liability,  embracing  the  last  instrument, 
which  he  was  willing  to  pay,  would  not  remove  the  bar  of  the  stat- 
ute, or  prevent  it  from  attaching  subsequently.  The  bar  of  the  stat- 
ute can  be  avoided  only  by  a  partial  payment  before  the  bar  is  com- 
plete, or  an  unconditional  promise  in  writing. — Code  of  1876,  §  3240. 


TINKHAM  V.  HEYWORTH. 

(Supreme   Court   of   Illinois,    1863,   31    111.    522.) 

E.  I.  Tinkham  &  Co.  were  bankers  in  the  city  of  Chicago,  and  in 
the  usual  course  of  their  business  as  such,  collected  notes,  bills,  drafts, 
etc.,  for  their  customers.  Heyworth,  the  appellee,  who  was  doing 
business  in  the  same  city  as  a  merchant,  under  the  name  of  J.  O.  Hey- 
worth &  Co.,  was  a  customer  of  these  bankers,  and  kept  a  deposit 
account  with  them,  drawing  his  money  out  as  occasion  required.  While 
this  relation  existed  between  the  parties,  Heyworth  placed  in  the 
hands  of  the  bankers  a  demand  for  $103.10  against  one  Tewksbury, 

for  collection. 

The  bankers  collected  the  amount  from  Tewksbury,  and  placed 
it  to  the  credit  of  Heyworth;  under  his  firm  name  of  J.  O.  Heyworth 

&Co. 

The  bank  deposit  book  of  Tinkham  &  Co.  showed  an  account  be- 
tween the  parties,  which  was  balanced  January  11,  1861,  and  there 
was  entered  as  the  last  item,  "March   13,   1861,  Dr.  to  coll.   G.  D, 

Tewksbury,  103.10." 

On  the  11th  February,  1862,  Heyworth  made  demand  of  the  amount 
so  collected  for  him  by  Tinkham  &  Co.,  and  they  refused  to  pay  it 
over. 


Ch.    5)  COMPARED    WITH    SIMILAR  RELATIONS.  11 

It  was  the  general  and  universal  custom  in  Chicago  for  bankers  to 
pass  all  collections  for  customers  to  their  credit,  like  any  other  de- 
posit, and  this  was  so  in  the  case  of  a  single  collection  for  a  party  not 
previously  a  customer  or  depositor. 

On  this  state  of  facts,  Heyworth,  on  the  20lh  of  February,  1862, 
commenced  an  action  of  "trespass  on  the  case"  in  the  court  below, 
against  Tinkham  &  Co.,  to  recover  the  amount  collected  by  them 
upon  the  demand  which  he  had  placed  in  their  hands  against  Tewks- 
bury.  Such  proceedings  were  had  in  that  suit,  that  the  plaintiff  re- 
covered a  judgment  against  the  defendants,  from  which  they  took 
this  appeal. 

The  assignment  of  errors  presents  the  question,  whether  an  action 
on  the  case  will  lie  against  bankers  who  fail  to  pay  over  money  which 
they  have  collected  for  others.     .     .     . 

Caton,  C.  J.  Were  this  action  against  an  attorney  for  not  pay- 
ing over  money  collected,  we  should  not  hesitate  to  hold  that  case 
would  lie.  We  think  it  is  different  in  the  case  of  a  bank.  Different 
duties  and  different  rights  arise  in  the  two  cases.  The  bank  receives 
no  fee  for  its  services,  but  only  the  use  of  the  money  vmtil  it  shall 
be  called  for  by  the  creditor,  while  the  attorney  is  entitled  to  a  direct 
reward,  and  has  no  right  to  use  the  money  at  all,  but  must  pay  it 
over  to  his  client  immediately,  without  demand.  Money  thus  collected 
never  becomes  the  attorney's  money,  he  had  no  right  to  make  him- 
self the  debtor  of  the  client  by  crediting  him  with  the  amount,  while 
the  bank  may  place  the  money  in  its  vaults  as  its  own,  and  credit 
the  customer  with  the  amount,  and  thereby  become  the  debtor  of  the 
customer,  the  same  as  in  case  of  an  ordinary  depositor,  and  this, 
whether  the  customer  keeps  an  ordinary  account  with  the  bank  or 
not.  Such  is  the  universal  custom  with  banks,  and  if  we  may  not 
take  notice  of  this  custom,  it  was  abundantly  proved  on  this  trial. 
When  the  money  is  thus  credited  by  the  bank,  it  assumes  every  re- 
sponsibility for  its  safety,  while  this  is  not  the  case  with  an  attorney. 
In  many  respects,  the  undertaking  is  very  different  in  the  two  cases. 

When  this  money  was  collected  and  placed  to  the  credit  of  the 
plaintiff,  the  only  relation  between  the  parties  was  that  of  debtor  and 
creditor,  and  the  form  of  the  action  should  have  conformed  to  that 
relation.    We  think  an  action  as  for  a  tort  would  not  lie. 

The  judgment  must  be  reversed,  and  the  cause  remanded. 

Judgment  reversed. 


12  TEUSTS.  (Part 


DAILY  V.  BUTCHERS'  &  DROVERS'  BANK  OF  ST.  LOUIS. 

(Supreme    Court    of    Missouri,    1874,    5G    Mo.    94.) 

VoRiES,  J.  .  .  .  There  is  no  difficulty  in  reference  to  the  facts 
in  this  case ;  all  of  the  material  facts  stand  admitted.  The  question 
is  as  to  the  law  growing  out  of  the  facts  admitted.  The  plaintiff 
being  the  owner  of  certain  drafts  drawn  on  certain  persons  in  the 
States  of  Mississippi  and  Arkansas  and  being  a  customer  of  the  de- 
fendant (a  bank  in  St.  Louis,  Mo.),  deposited  these  drafts  with  the 
defendant  for  collection.  The  defendant  forwarded  the  drafts  to 
the  National  Bank  at  Vicksburg,  in  the  State  of  Mississippi,  for  col- 
lection. The  drafts  were  indorsed  by  the  cashier  of  defendant  to 
the  cashier  of  the  National  bank  at  Vicksburg,  for  collection  fov 
account  of  Butchers'  and  Drovers'  Bank  of  St.  Louis.  The  Vicksburg 
bank  collected  part  of  the  drafts  and  shortly  afterwards  failed  and 
became  insolvent  without  ever  paying  or  otherwise  accounting  to 
defendant  for  the  money  collected  or  the  drafts  uncollected.  There 
is  no  pretense  that  the  defndant  had  not  used  due  diligence  in  select- 
ing the  Vicksburg  bank  as  a  collecting  agent,  it  being  solvent  at  the 
time  the  drafts  were  forwarded.  After  the  Vicksburg  bank  became 
insolvent,  the  plaintifif  demanded  the  money  collected  by  the  Vicks- 
burg bank  and  the  drafts  uncollected,  of  the  defendant.  The  de- 
fendant failed  to  pay  the  money  or  deliver  the  drafts,  and  the  plain- 
tiff commenced  this  action  to  recover  the  amount  thereof. 

The  question  is,  is  the  defendant  liable  for  the  amount  of  these 
drafts  in  this  action,  or,  in  other  words,  was  the  Vicksburg  bank 
the  agent  of  the  plaintiff  for  the  collection  of  these  drafts,  or  was 
it  the  agent  of  the  defendant?  This  has  for  a  long  time  been  a 
vexed  question  in  the  commercial  world,  the  decisions  on  the  sub- 
ject being  conflicting  both  in  England  and  in  this  country.  In  the 
State  of  New  York,  although  the  decisions  on  the  subject  have  not 
always  been  entirely  consistent,  it  is  now  well  settled  that,  where  a 
bank  in  that  State  receives  for  collection  a  draft  payable  in  another 
State,  and  forwards  the  draft  to  a  correspondent  in  the  place  where 
the  draft  is  payable,  the  bank  receiving  the   draft    for   collection  is 


Cb.    5)  COMPAEED    WITH    SIMILAR  RELATIONS.  13 

responsible  to  the  owner ;  that  such  correspondent  is  the  agent  of  the 
bank  transmitting  the  draft  and  not  the  sub-agent  of  the  owner  of 
the  draft.  (Allen  v.  Merchants'  Bank.  22  Wend.  215;  Commercial 
Bank  v.  Union  Bank,  1  Kern.,  203).  And  the  same  rule  is  adopted 
in  the  States  of  Ohio  and  Indiana,  and  perhaps  in  some  other  States, 
(^^eeves  v.  The  State  of  Ohio,  8  Ohio  St.  465 ;  American  Express 
Co.  V.  Haire,  21st  Ind.  4).     .     .     . 

In  the  States  of  Massachusetts,  Pennsylvania,  Connecticut,  Illinois, 
and  in  several  other  States,  the  decisions  are  in  direct  conflict  with 
those  in  New  York  and  Ohio  referred  to.  In  the  case  of  Bellemire 
V.  Bank  of  United  States  (4  Wharton,  105),  it  was  held  that  the  bank 
should  be  regarded  as  having  vnidertaken  to  collect  the  note  in  the 
customary  mode,  and  the  holder  of  the  note  must  be  understood  to 
have  consented  to  the  arrangement ;  consequently,  on  default  of  pay- 
ment by  the  maker,  it  became  the  duty  of  the  bank  to  call  to  its  aid 
the  notary  and  intrust  him  with  the  performance  of  that  which  was 
necessary  to  secure  the  responsibifity  of  the  indorsers ;  that  the  notary 
being  a  public  officer,  he  and  his  sureties  on  his  official  bond  were  liable 
to  the  parties  injured  by  his  neglect  or  misconduct,  and  not  the  bank 
or  person  who  directly  employed  him.     ... 

These  cases  are  not  all  exactly  alike  in  reference  to  their  particular 
facts,  but  the  principle  involved  is  deemed  to  be  the  same.  They  are 
governed  by  one  general  idea,  which  is,  that  it  is  the  universal  custom 
and  habit  for  banks  which  receive  notes  and  drafts  for  collection,  the 
payer  of  which  resides  at  a  distance,  to  transmit  the  same  to  some 
bank  or  agency  at  the  place  of  payment  and  that  therefore,  when 
the  holder  of  a  bill  or  draft  in  such  case  deposits  the  same  with  a  bank 
for  collection,  without  instructions  to  the  contrary,  he  is  presumed 
to  do  so  with  reference  to  such  usage  and  to  authorize  the  bank  to 
transmit  the  bill  or  draft  accordingly.  And  when  the  collecting  bank 
uses  due  diligence  and  good  faith  in  selecting  a  correspondent  or  bank 
at  the  place  of  payment,  to  whom  the  bill  or  draft  is  transmitted,  it 
has  discharged  its  whole  duty,  and  this,  notwithstanding  the  draft 
is  indorsed  to  the  agency  to  which  it  is  transmitted,  for  collection 
on  account  of  the  collecting  bank.  Of  course  in  such  cases  if  the 
bank  or  other  agent,  to  whom  the  draft  was  transmitted,  should  collect 
the  draft  and  pay  over  the  proceeds  to  the  first  bank  or  to  its  order 
without  notice  to  the  contrary  from  the  real  owner,  the  bank  to  which 


14  TRUSTS.  (Part  2 

it  was  transmitted  would  be  discharged  from  further  habihty,  and 
the  first  bank  with  which  the  bill  was  deposited  would  be  liable  to 
the  owner  for  the  proceeds.     .     .     . 

The  judgment  of  the  Circuit  Court  will  be  affirmed.     The  other 
judges  concur. 


SIMPSON  V.  WALDBY. 

(Supreme  Court  of  Michigan,  1886,  63  Mich.  4,39.) 

Morse,  J.  .  .  .  From  a  careful  perusal  of  the  entire  charge 
it  does  not  appear  that  the  jury  were  instructed  upon  the  precise 
theory  of  the  plaintiff's  claim.  He  claims  that  he  had  nothing  to  do 
with  the  selection  of  the  St.  Albans  Bank  as  a  medium  through  which 
to  collect  the  drafts  upon  Rixf ord ;  that  such  bank  was  chosen  by  the 
defendants,  and  was  their  agent,  not  his,  and  it  was  contended,  under 
his  evidence  of  the  transaction,  that  the  defendants  were  responsible 
for  the  loss  of  the  money  occasioned  by  the  failure  of  the  St.  Albans 

Bank. 

It  will  be  seen  that  the  circuit  judge  charged  the  jury  what  the 
law  would  be,  in  the  absence  of  any  agreement,  if  Simpson  requested 
the  drafts  to  be  sent  to  the  St.  Albans  Bank,  but  is  silent  as  to  what 
would  be  the  result  if  the  defendants  themselves  selected  this  bank, 
without  any  agreement  as  to  who  should  bear  the  loss,  if  any. 

The  counsel  for  the  defendants  contend  here,  as  they  did  below,  that 
in  the  case  of  collections,  like  this,  where  there  is  no  special  agreement, 
the  home  bank  is  only  responsible  for  the  use  of  ordinary  care  and 
prudence  in  the  selection  of  the  agencies  through  which  it  attempts 
the  collection.  This  is  undoubtedly  the  purport  and  meaning  of  the 
instructions  of  the  court  below,  taken  as  a  whole,  to  the  jury. 

The  question  is  therefore  directly  before  us,  what  is  the  law  of  the 
case  when  a  person  steps  into  a  bank,  in  the  ordinary  course  of  busi- 
ness dealing,  and  intrusts  to  it  the  collection  of  a  draft  drawn  upon 
some  person  residing  at  a  distance,  in  case  the  home  bank,  through 
the  failure  or  dishonesty  of  another  bank,  selected  by  itself,  never 
received  the  money  upon  such  draft,  though  the  same  is  paid  by  the 
drawee  ? 


Cll.    5)  COMPARED    WITH    SIMILAR  RELATIONS.  15 

In  the  absence  of  any  agreement  in  regard  to  the  matter,  who 
must  bear  the  loss,  in  case  the  home  bank  has  not  been  at  fault  in 
the  selection  of  its  agent  or  agents? 

There  is  a  conflict  of  authority  upon  this  proposition;  and,  as  it 
has  never  been  settled  in  this  State,  we  must  be  guided  and  governed 
in  our  action  by  what  seems  to  us  the  most  correct  view  in  justice 
and  on  principle. 

Is  is  held  in  New  York,  Indiana,  Ohio,  and  New  Jersey  that  the 
home  bank  must  be  the  loser,  upon  the  principle  that  such  bank  un- 
dertakes the  collection  of  the  draft  or  bill,  and  selects  its  agent  or 
agents,  and  nuist  be  responsible  for  their  default  or  neglect,  as  it 
would  be  for  the  default  or  neglect  of  its  officers  or  clerks  in  the  col- 
lection of  a  house  bill,  or  as  a  contractor  would  be  bound  to  answer 
for  any  negligence  or  default  of  his  subcontractors  or  workmen  in 
the  performance  of  his  contract.  Allen  v.  Merchants'  Bank  of  New 
York,  22  Wend.  215;  Reeves  v.  State  Bank  of  Ohio,  8  Ohio  St.  465; 
Titus  V.  Mechanics'  Nat.  Bank,  35  N.  J.  Law,  588;  Ayrault  v. 
Pacific  Bank,  47  N.  Y.  570;  Abbott  v.  Smith,  4  Ind.  452;  Tyson  v. 
State  Bank,  6  Blackf.  225. 

In  other  states  it  is  adjudged  that  the  customer  depositing  the  draft 
for  collection  must  be  presumed  to  know,  and  contract  upon  the 
knowledge,  that  in  the  ordinary  course  of  business  the  home  bank 
must  employ  correspondents  or  agents  abroad  to  make  the  collection 
and  transmit  the  money  collected.  The  holder  or  nfaker  of  the  draft, 
having  full  notice  of  the  usual  course  of  business,  must  be  held  to 
assent  thereto. 

"He  therefore  authorizes  the  bank  with  which  he  deals  to  do 
the  work  of  collection  through  another  bank."  "The  bank  receiving 
the  paper  becomes  an  agent  of  the  depositor,  with  authority  to  em- 
ploy another  bank  to  collect  it.  This  second  bank  becomes  the  sub- 
agent  of  the  customer  of  the  first,  for  the  reason  that  the  customer 
authorizes  the   employment   of    such   agent   to  .make   the   collection." 

If,  therefore,  there  is  no  want  of  ordinary  care  and  prudence  in 
the  selection  of  the  subagent,  and  no  negligence  or  fault  on  the  part 
of  the  home  bank,  the  customer  must  be  the  loser  for  the  default  or 
negligence  of  such  subagent  who  is  regarded  as  his  agent.  Guelich 
V.  National  St.  Bank  of  Burlington,  56  Iowa,  434.     .     .     . 

Nearly  all  the  cases  cited  above,  in  support  of  both  sides  of  the 
question,  relate  to  transactions  by  which  the  draft  or  bill  failed  of 


16  TRUSTS.  (Part  2. 

collection  by  neglect  of  the  notary  to  make  demand  in  time,  or  proper 
protest,  or  default  of  the  agent  in  not  moving  quick  enough  to  make 
the  money. 

In  the  case  at  bar  the  draft  was  collected  of  the  drawee,  and  the 
loss  of  the  money  resulted  from  the  failure  of  the  St.  Albans  Bank, 
before   the   collection   of    its   draft   transmitting   such   money   to    de- 
fendants.   If  defendants  were  negligent  or  in  fault  in  not  immediately 
forwarding  such  draft  to  New  York,  upon  its  reception  by  them,  or 
in  its  presentation  there,  they  are,  in.my  opinion,  liable  to  plaintiff  for 
the  money;  but,  if  there  was  no  negligence  in  either  of  these  respects, 
the  question  arises,  who  must  bear  the  loss  on  account  of  the  inability 
of  the  St.  Albans  Bank  to  meet  its  draft  transmitting  the  money  ?     .     . 
In  Mackersy  v.  Ramsays  (in  the  house  of  lords),  9  Clark  &  F.  818, 
the   same   doctrine    is    maintained.      Mackersy    employed    bankers    in 
Edinbvn-gh  to  obtain  for  him  payment  of  a  bill  drawn  upon  a  person  in 
Calcutta.      The   bankers   accepted   the   employment,    and    wrote   him, 
promising  to  credit  him  with  the  money  wdien  received.     They  trans- 
mitted the  bill,  in  the  usual  course  of  business,  to  bankers  in  London, 
and  by  them   it  was    forwarded  to   India,   where   it   was   duly   paid. 
The  bank  in  India  that  collected  the  money  failed,  and  the  Edinburgh 
bankers  did  not  receive  it.     They,  however,  wrote  to  the  drawer  of 
the  bill,  announcing  the  fact  of  its  payment,  but  never  actually  cred- 
ited him  with  the  amount  thereof   on  their  books.     Held,  that  the 
Edinburgh  bankers  were  the  agents  of  the  drawer  to  obtain  payment 
of  the  bill ;  that,  payment  having  been  actually  made,   they  became 
ipso  facto  liable  to  him  for  the  amount  received,  and  that  he  could 
not  be  called  upon  to  suffer  any  loss  occasioned  by  the  conduct  of  their 
subagents,  between  whom  and  himself  there  existed  no  privity.     .     . 
The  learned  jurists  holding  otherwise  all  admit  that,  if  a  person  in- 
intrusts  a  home  draft  or  bill  to  a  bank  for  collection,  such  bank  is 
responsible   to   the   customer    for    any    negligence    or    default    of    its 
agents,  officers,  or  employees.     I  cannot  see  why  any  different  rule 
should  prevail  in  the  collection  of  a  foreign  bill.     It  is  in  every  case 
that  I  have  examined  sought  to  be  maintained  upon  the  theory  that 
the  customer  knows  the  bank  must  act  through  some  other  person  or 
persons  at  a  distance,  and  therefore,  impliedly,  from  the  very  nature  of 
the  course  of  business,  assents  to  the  employment  of  such  persons, 
and  makes  them  his  agents.     This  reasoning  does  not   strike  me  as 


Ch.    5)  COMP.OJED    WITH    SIMIL.\R  EELATIONS.  17 

sound.  If  I  leave  an  indorsed  note  against  persons  in  my  own  town 
for  collection,  and  consequent  demand  and  protest,  I  know  that  some 
agent  or  employee  of  the  bank  will  do  the  work,  or  some  part  of  it, 
and  I  do  not  know  or  inquire  who  will  do  it.  I  contract,  however, 
with  the  bank  that  suitable  agents  will  be  employed,  and  hold  it 
responsible  for  their  acts.     The  law  authorizes  me  to  do  this. 

If  J  intrust  the  same  bank  with  the  collection  of  a  foreign  draft, 
I  also  know  that  they  will  employ  some  agent  or  correspondent  abroad, 
of  their  selection,  not  mine,  of  whom  I  know  nothing,  and  with  whom 
they  are  supposed  to  have  business  relations.  I  do  not  inquire  whom 
they  are  to  select.  I  presume,  and  have  a  right  to  presume,  that 
they  have  business  knowledge  of  such  agent  or  agents,  which  I  do  not 
and  cannot  possess,  by  the  very  course  of  their  dealings  as  bankers. 

In  each  case  the  bank  holds  itself  out,  for  a  consideration,  to 
collect  my  paper,  and  it  can  make  no  difference  whether  the  com- 
pensation is  great  or  small.  In  each  case  it  selects  its  own  agents  in 
the  premises.  In  each  case  I  have  no  part  in  or  control  over  such 
selection.  In  each  case  there  is  no  privity  between  the  party  selected 
and  myself. 

It  has  been  said  by  some  of  the  courts  that  the  holding  of  banks 
liable  for  the  default  and  neglect  of  their  correspondents  in  a  case 
like  the  present  would  render  the  collection  of  bills  and  drafts  of  this 
nature  extremely  difficult,  and  that  it  would  tend  very  much  to  destroy 
the  facilities  which  at  present  eicist,  and  subject  the  holders  of  bills 
to  inconvenience  and  expense,  and  probably,  in  many  cases,  to  serious 
loss. 

But  as  long  as  banks  and  bankers  or  other  persons  hold  themselves 
out  to  collect  such  bills  or  drafts  for  a  compensation,  or  their  ad- 
vantage, they  ought  to  be  governed  by  the  same  rules  of  law  that  ap- 
ply to  other  persons,  and,  if  they  wish  to  avoid  such  responsibility, 
it  is  very  easy  for  them  to  accept  such  business  only  upon  a  special 
agreement  as  to  their  duties  and  liabilities.  Failing  to  do  this,  I 
think  they  must,  in  taking  such  bills  or  drafts,  be  responsible,  as  other 
business  men  are,  for  the  misconduct  of  their  selected  agents  at  home 
or  abroad.     .     .     . 

2  Eq.— 2 


18  TRLTSTs.  (Part  2 


ZEIDEMAN  V.  MOLASKY. 

(Missouri  Court  of  Appeals,  1906,  118  Mo.  App.  106,  94  S.  W.  754.) 

NoRTONi^  J.     The  action  is  for  money  had  and  received.     .     .     . 

It  therefore  appears  from  the  petition  that  respondent  is  trustee 
of  an  express  trust  in  so  far  as  appellant's  earnings  and  their  in- 
crements arising  out  of  the  several  periods  of  employment  since  her 
majority,  are  concerned.  Now  this  action  is  for  money  had  and  re- 
ceived and  such  form  of  action  is  a  proper  remedy  by  the  cestui  que 
trust  against  the  trustee  of  an  express  trust  only  when  the  trust  is 
fully  executed  and  the  amount  settled  and  there  is  nothing  to  do  but 
for  the  trustee  to  pay  over  the  amount  to  the  cestui  que  trust.  An 
action  at  law  for  money  had  and  received  will  not  lie  when  the  trust 
is  still  open,  nor  until  the  final  account  is  settled  and  a  balance  as- 
certained. (Case  V.  Roberts,  1  Holt's  N.  P.  C.  501 ;  2  Perry  on  Trusts 
(5  Ed.),  sec.  843;  22  Amer.  and  Eng.  Ency.  PI.  and  Pr.  (2  ed.), 
137-138;  Frost  v.  Redford,  54  Mo.  App.  345.)  From  the  allegations 
of  the  petition  relative  to  the  relations  between  the  parties  other  than 
those  arising  out  of  the  alleged  guardianship,  it  appears  that  there 
has  been  no  settlement  or  ascertainment  of  the  alleged  account ; 
in  fact,  it  appears  that  the  funds  alleged  to  be  the  subject  of  the 
trust  are  in  no  manner  ascertained.  Such  funds  arise  out  of  a  con- 
tract of  hire  in  which  the  compensation  was  not  even  agreed  upon. 
No  prior  contract  is  shown  whereby  any  certain  amount  is  to  be  al- 
lowed appellant  as  her  compensation  and  invested  for  her  benefit, 
and  in  truth,  it  affirmatively  appears  that  no  settlement  or  ascertain- 
ment of  the  alleged  trust  account  has  ever  been  had  between  the 
parties.  Wherefore,  it  is  plain  that  the  action  for  money  had  and 
received  will  not  lie,  under  the  circumstances  stated,  for  the  amount 
that  may  be  due  appellant  by  virtue  of  the  several  employments,  her 
wages  and  increments  since  her  majority,  the  remedy  being  by  bill 
in  equity  to  obtain  an  accounting  therefor.     .     .     . 


Cll.    5)  COMPAEED    WITH    SIMILAR  RELATIONS.  19 


DOYLE  V.  MURPHY. 

(Supreme  Court  of  Illinois,  1859,  22  111.  502.) 

Walker,  J.     .     .     •     By  the  defendants  in  error,  it  is  insisted  that 
Maurice  Doyle  was  a  trustee,  and  being  such,  a  court  of  equity  has 
undoubted  jurisdiction  over  the  trust  fund.     That  the  court  has  such 
a  jurisdiction  in  cases  of  strict  trust,  there  is  no  doubt.     But  it  does 
not  therefore  follow,  that  the  court  will  assume  jurisdiction  in  every 
case  where  a  mere  confidence  has  been  reposed,  or  a  credit  given. 
The  various  affairs  of  life  in  almost  every  act  between  individuals  in 
trade  and  commerce,  involve  the  reposing  of  confidence  or  trust  in 
each  other,  and  yet  it  never  has  been  supposed  that  because  such  a 
confidence  or  trust  in  the  integrity  of  another  has  been  extended  and 
abused,  that  therefore,  a  court  of  equity  would  in  all  such  cases  assume 
jurisdiction.     When   one   person    sells    property   on   credit,    or    loans 
money  to  another,  confidence  is  reposed  and  a  trust  is  entertained  that 
the  money  will  be  paid  by  the  debtor,  and  yet  no  case  has  gone  so  far 
as  to  hold,  that  it  was  such  a  trust,  as  gave  to  a  court  of  equity  juris- 
diction under  the  head  of  trusts.     If  this  were  so,  there  would  be  no 
case  where  property  or  money  was  obtained  on  a  credit,   in   which 
the  court  would  not  have  jurisdiction.     But  on  the  other  hand,  when 
property  is  conveyed  or  given  by  one  person  to  another,  to  hold  for 
the  use  of  a  third  person,  such  a  trust  is  thereby  created,  as  authorized 
the  court  of  equity  to  entertain  jurisdiction,  to  compel  its  application 
to  the  purposes  of  the  trust.     And  the  property  may  be  pursued  into 
the  hands  of  all  persons  who  have  obtained  it  with  notice  of  the  trust, 
or  where  it  has  been  converted  into  money,  the  money  may  be  re- 
covered, or  where  the  money  arising  from  the  sale  of  trust  property 
or  funds,  has  been  invested  in  other  property,  a  court  of  equity  will 
compel  the  trustee  to  account   for  the  property   thus  acquired,   and 
treat  it  in  every  respect  as  if  it  were  the  original  trust  property.     In 
this  case  the  bill  alleges  and  one  of  the  complainants   swears,  that 
money  was  delivered  to  Maurice  Doyle  to  pay  certain  debts  of  Catherine 
Byrne,  which  he  failed  to  so  apply.     If  he  failed  to  pay  this  money, 
there   was    such    a   breach    of    contract,    as    would    have    authorized 


20  TRUSTS.  (Part  2 

Catherine  Byrne  to  maintain  an  action  for  money  had  and  received, 
and  probably  tlie  creditors  to  whom  the  money  should  have  been 
paid  might  have  maintained  the  action.  But  according  to  no  rule  or 
adjudged  case  that  we  are  aware  of,  was  it  a  trust  fund,  authorizing 
Mrs.  Byrne  or  her  representatives  to  recover  as  a  trust  fund.  If  it 
was  a  trust  fund,  it  was  such  for  the  benefit  of  her  creditors,  and 
they  would  alone  have  had  the  right  to  pursue  it  in  ec[uity,  and  her 
representatives  have  no  better  or  greater  right  than  she  held.     .     ,     , 


McFADDEN  v.  JENKYNS. 

(In  Chancery,   1842,  1  Phillips  153.) 

The  L,ord  Chancellor.  This  was  an  appeal  from  a  judgment  of 
Vice  Chancellor  Wigram,  upon  a  motion  for  an  injunction  to  stay 
proceedings  at  law.  The  facts  stated  in  support  of  the  motion  were 
shortly  these.  The  testator,  Thomas  Warry,  had  lent  a  sum  of  500 
pounds  to  the  defendant  Jenkyns,  to  be  returned  within  a  short  period. 
Some  time  afterwards  Warry  sent  a  verbal  direction  to  Jenkyns  to 
hold  the  500  pounds  in  trust  for  Mrs.  McFadden.  This  he  assented 
to,  and,  upon  her  application,  paid  her  a  small  sum,  10  pounds,  in 
respect  of  this  trust.  The  main  question  was,  whether,  assuming 
the  facts  to  be  as  stated,  this  transaction  was  binding  upon  the  estate 
of  Thomas  Warry.  The  executor  had  brought  an  action  to  recover 
the  500  pounds  so  lent  to  Jenkyns.  It  is  obvious  that  the  rights  of 
the  parties  could  not,  with  reference  to  this  claim,  be  finally  settled 
in  a  court  of  law;  and,  if  the  trust  were  completed  and  binding,  an 
injunction  ought  to  be  granted. 

Some  points  were  disposed  of  by  the  Vice-Chancellor  in  this  case, 
which  are  indeed  free  from  doubt,  and  appear  not  to  have  been  con- 
tested in  this  Court,  viz.  That  a  declaration  by  parol  is  sufficient 
to  create  a  trust  of  personal  property;  and  that  if  the  testator  Thomas 
Warry  had,  in  his  lifetime,  declared  himself  a  trustee  of  the  debt 
for  the  Plaintifif,  that,  in  equity,  would  perfect  the  gift  to  the  plaintiff 
as  against  Thomas  Warry  and  his  estate.  The  distinctions  upon  this 
subject  are  undoubtedly  refined,  but  it  does  not  appear  to  me  that 
there    is    any    substantial    difference    between    such    a    case    and   the 


Cb.    5)  COMPARED    WITH    SIMILAR  RELATIONS.  21 

present.  The  testator,  in  directing  Jenkyns  to  hold  the  money  in  trust 
for  the  Plaintiff,  which  was  assented  to  and  acted  upon  by  Jenkyns, 
impressed,  I  think,  a  trust  upon  the  money  which  was  complete  and 
irrevocable.  It  was  equivalent  to  a  declaration  by  the  testator  that 
the  debt  was  a  trust  for  the  plaintiff. 

The  transaction  bears  no  resemblance  to  an  undertaking  or  agree- 
ment to  assign.  It  was  in  terms  a  trust,  and  the  aid  of  the  court  was  not 
necessary  to  complete  it.  Such  heing  the  strong  inclination  of  my 
opinion,  and  corresponding,  as  it  appears  to  do,  with  that  of  the 
learned  Judge  in  the  court  below,  and  with  the  decision  of  the  Master 
of  the  Rolls  in  the  case  to  which  he  refers,  I  cannot  do  otherwise  upon 
this  motion,  and  in  this  stage  of  the  cause,  than  refuse  the  applica- 
tion.    .     .     . 


PORTER  V.  JACKSON. 

(Supreme  Court  of  Indiana,  1883,  95  Ind.  ,210.) 

ZoLLARS^  J.  The  w\\\  of  William  Jackson  was  probated  in  1869. 
By  this  will,  the  testator  gave  to  his  wife  all  of  his  property,  real  and 
personal  so  long  as  she  should  remain  his  widow.  Upon  her  mar- 
riage or  death  the  property  was  devised  to  his  seven  children,  one- 
seventh  to  each.  The  will  contained  the  following  provision :  "I 
further  will  that,  as  a  condition  of  the  acceptance  of  the  property 
thus  devised  to  my  heirs,  they,  on  their  part,  shall  support  and  main- 
tain Eliza  Andrews,  during  her  natural  life,  or  until  she  shall 
marry."     .     .     . 

The  will,  as  we  have  seen,  provides  that  as  a  condition  of  the 
acceptance  of  the  property  devised,  the  devisees  shall  support  and 
maintain  Eliza  Andrews.  The  rule  is  well  settled  that,  where  real 
estate  is  devised  to  the  person  who,  by  the  will,  is  directed  to  pay 
a  legacy,  such  legacy  is  an  equitable  charge  upon  the  real  estate  so 
devised.  Lindsey  v.  Lindsey,  45  Ind.  552;  Wilson  v.  Piper,  77  Ind. 
437;  Cann  v.  Fidler,  62  Ind.  116;  Wilson  v.  Moore,  86  Ind.  244: 
Castor  V.  Jones,  86  Ind.  289;  Nash  v.  Taylor,  83  Ind.  347. 

This  is  conceded  by  counsel  in  this  case.  It  is  further  conceded, 
in  argument,  that  as  the  will  was  probated  and  of  record,  and  as  Eliza 


22  TRUSTS.  (Part  2 

Andrews  was  not  a  party  to  the  partition  proceedings,  the  equitable 
charge  for  her  support  was  not  destroyed  by  the  sale  to  appellant. 

We  think  it  equally  clear  that  the  acceptance  of  the  property,  under 
the  will,  imposed  a  personal  obligation  upon  the  devisees  to  furnish 
the  support  to  the  legatee,  and  that  she  may  enforce  that  obligation  by 
a  suit,  and  recover  a  personal  judgment.  The  acceptance  of  the 
property  under  the  will  implied  a  promise  to  furnish  the  support. 
That  support  seems  to  have  been  the  consideration  for  the  property 
devised.  It  is  expressly  made  the  condition  to  the  vesting  of  the  title 
to  the  property.  It  seems  to  be  plain  that  the  testator  intended  to 
impose  a  personal  charge  upon  the  devisees. 

In  the  case  of  Harris  v.  Fly,  7  Paige,  421,  which  arose  under  a  will 
similar  to  that  under  consideration,  Chancellor  Walworth,  in  speak- 
ing of  the  legacy,  and  the  liability  of  the  devisee  said:  "By  the  will, 
the  payment  thereof  is  charged  upon  him  personally;  and  he  has  re- 
ceived the  land  as  an  equivalent  for  the  payment  thereof,  although 
for  the  protection  of  the  rights  of  the  legatees,  this  court  gives  them 
an  equitable  lien  upon  the  land  itself  as  an  additional  security.  This 
case  was  cited  and  approved  by  this  court  in  the  case  of  Lindsey  v. 
Lindsey,  supra.  The  same  doctrine  was  held  in  the  case  of  Cann  v. 
IFidler,  supra.     .     .     . 

Under  the  provisions  of  the  will,  and  in  the  light  of  the  above  au- 
thorities, we  think  it  is  very  clear  that  the  devisees  are  personally 
bound  to  furnish  to  Eliza  Andrews  the  support  provided  in  the  will, 
and  that  she  may  enforce  that  liability  by  suit,  even  beyond  the  value 
of  the  land  devised  if  necessary,  and  without  resorting  to  the  land 
at  all,  if  the  amount  can  be  made  by  such  suit  or  suits.  Whether  the 
devisees  could  compel  her  to  thus  resort  to  their  personal  liabiHty 
before  having  resort  to  the  land,  if  they  still  own  it,  we  need  not 
decide. 

We  think  it  clear  also  that  the  charge  upon  the  land  remains  an 
equitable  charge  upon  the  fund  in  the  hands  of  the  commissioner  and 
in  the  custody  of  the  court,  and  that  she  may  enforce  that  charge. 
Especially  is  this  so,  as  the  devisees  are  liable  beyond  the  value  of 
the  land,  and  are  insolvent.  She  may  enforce  the  personal  liability 
against  the  devisees,  and  still  look  to  the  land  if  necessary.  See 
analogous  cases,  Gimbel  v.  Stolte,  59  Ind.  446;  Clyde  v.  Simpson,  4 
Ohio  St.  445;  MilHgan  v.  Poole,  35  Ind.  64;  Harris  v.  Fly,  supra. 


Cb.    5)  COMPARED    WITH    SIMIL.VE  RELATIONS.  23 


WHITEHOUSE  v.  CARGILL. 

(Supreme  Court  of  Maine,  1896,  88  Me.  479,  34  Atl.  276.) 

Foster,  J.  The  father  of  the  plaintiff  devised  certain  real  estate 
to  his  son,  and  in  his  will  directed  that  the  son  pay  to  the  plaintiff 
five  hundred  dollars  when  she  should  become  twenty-one  years  of 
age. 

The  father  died  November  10,  1871,  and  his  will  was  duly  ad- 
mitted to  probate. 

The  defendant  was  appointed  guardian  of  the  plaintiff  in  1873, 
and  continued  to  be  her  legal  guardian  till  she  arrived  at  the  age  of 
twenty-one  years  in  1890. 

On  October  2d  1876,  the  son  conveyed  by  warranty  deed  the  real 
estate  to  this  defendant. 

This  real  estate,  upon  a  former  bill  in  equity,  brought  by  the  plain- 
tiff against  the  defendant,  was  charged  with  the  payment  of  said 
legacy  (Whitehouse  v.  Cargill,  86  Maine,  60),  and  by  a  decree  of 
the  court  was  sold  by  the  master  and  the  proceeds,  amounting  to 
$143,  was  paid  to  the  plaintiff. 

After  the  termination  of  defendant's  guardianship  he  procured  an 
insurance  of  five  hundred  dollars  on  the  store  which  was  a  part  of 
the  real  estate  conveyed  to  him  by  his  warranty  deed  from  the  tes- 
tator's son.  The  store  was  burned  and  defendant  collected  the  in- 
surance. 

The  present  case  raises  two  questions:  (1)  Is  the  defendant  ac- 
countable to  the  plaintiff  for  the  insurance  which  he  procured  in 
his  own  name,  and  has  collected?  (2)  Is  he  accountable  to  the  plain- 
tiff for  the  rents  and  profits  of  the  real  estate  prior  to  the  sale  by  the 
master? 

Both  questions  we  think  must  be  answered  in  the  negative. 

When  the  real  estate  was  sold  by  the  master  and  the  proceeds  paid 
to  the  plaintiff,  her  remedy  against  this  defendant  was  exhausted, 
unless  there  might  be  a  remedy  upon  the  guardian's  bond. 

The  nature  of  the  plaintiff's  claim  upon  the  real  estate  was  a  lien 
thereon  for  the  payment  of  her  legacy,  enforceable  in  equity.    Merritt 


24  TRUSTS.  (Part  2 

V.  Bucknam,  77  Maine  253;  Same  v.  Same,  78  Maine,  504;  Taft  v. 
Morse,  4  Met.  523;  Thayer  v.  Finnegan,  134  Mass.  62. 

The  contract  of  insurance  is  one  of  indemnity  only.  The  defendant 
had  an  insurable  interest,  and  could  recover  only  to  the  extent  of  his 
loss.  The  contract  of  insurance  does  not  run  with  the  land,  and  is 
an  agreement  to  indemnify  the  assured  against  any  loss  which  he  may 
sustain,  and  not  any  loss  incurred  by  another  having  an  interest  as 
mortgager,  redemptioner,  attaching  creditor  or  otherwise.  Cushing  v. 
Thompson,  34  Maine,  496;  White  v.  Brown,  2  Cush.  412;  Donnell 
V.  Donnell,  86  Maine,  518. 

There  was  no  privity  of  contract  in  fact  or  law  between  the  plaintifif 
and  the  defendant  by  which  this  insurance,  placed  by  the  defendant 
at  his  own  expense  and  upon  his  interest,  should  be  held  under  the 
lien  that  existed  upon  the  real  estate.  Donnell  v.  Donnell,  supra; 
Mclntire  v.  Plaisted,  68  Maine,  363;  Cushing  v,  Thompson,  34  Maine 
496;  White  v.  Brown,  supra. 

The  plaintiff  had  an  equitable  lien  upon  the  estate,  a  charge  upon 
it  rather  than  any  title  to  or  legal  estate  in  it.  Taft  v.  Morse,  4  Met. 
523;  Merritt  v.  Bucknam,  78  Maine,  504,  507;  Bailey  v.  Ekins,  7 
Ves.  323;  Gardner  v.  Gardner,  3  Mason,  178. 

The  holder  of  an  equitable  lien,  with  no  legal  estate,  cannot  call  the 
owner  of  the  legal  estate  to  account  for  the  rents  and  profits  re- 
ceived by  him  while  occupying  the  premises. 

Bill  dismissed. 


CHAPMAN  V.  SHATTUCK. 
(Supreme  Court  of  Illinois,   1846,  8   111.  49.) 

Treat,  J.  This  was  an  action  of  debt  commenced  by  Chapman 
against  Shattuck.  The  declaration  was  on  an  appeal  bond  in  the  pen- 
alty of  seventy-one  dollars.  At  the  return  term,  Shattuck  moved  to 
dismiss  the  case  and  filed  a  stipulation  signed  by  him  and  Chapman, 
stating  that  the  suit  had  been  settled,  and  agreeing  that  it  should  be 

dismissed  at  the  cost  of  Shattuck.  The  motion  was  resisted  by  W.  T. 
Burgess,  Esq.,  the  plaintiff's  attorney.  He  read  an  af^davit,  alleging 
in  substance  that  it  had  been  agreed  between  him  and  his  client  that 


Ch.    5)  COMPARED    WITH    SIMIL.\R  RELATIONS.  2o 

a  balance  of  seven  dollars,  dnc  him  for  services  as  attorney  in  this  and 
a  former  case,  should  be  paid  out  of  the  proceeds  of  the  judgment  to 
be  recovered  in  this  suit.  That  before  the  date  of  the  stipulation  to 
dismiss,  he  notified  Shattuck.of  the  agreement  between  him  and  his 
client;  and  that  the  settlement  was  made  without  his  knowledge  or 
consent.  The  circuit  court  dismissed  the  case  according  to  the  terms 
of  the  stipulation.     That  decision  is  now  assigned  for  error. 

It  is  insisted  that  Burgess  had  such  an  interest  in  the  subject-matter 
of  the  suit,  as  to  preclude  the  parties  from  compromising  it  without 
providing  for  the  payment  of  the  amount  due  him.  If  this  position 
sion  (?)  can  be  sustained,  it  must  be  on  the  ground  that  he  was  the 
equitable  assignee  of  the  chose  in  action,  on  which  the  suit  was  in- 
stituted. The  doctrine  is  now  well  settled,  that  courts  of  law  will 
recognize  and  protect  the  rights  of  the  assignee  of  a  chose  in  action, 
whether  the  assignment  be  good  at  law,  or  in  equity  only.  If  valid 
in  equity  only,  the  assignee  is  permitted  to  sue  in  the  name  of  the  per- 
son having  the  legal  interest,  and  to  control  the  proceedings.  The 
former  owner  is  not  allowed  to  interfere  with  the  prosecution,  except 
so  far  as  may  be  necessary  to  protect  himself  against  the  payment  of 
costs.  After  the  debtor  has  knowledge  of  the  assignment,  he  is  in- 
hibited from  doing  any  act  which  may  prejudice  the  rights  of  the 
assignee.  Payment  by  him  to  the  nominal  creditor,  after  notice  of  the 
assignment,  will  be  no  defence  to  an  action  brought  for  the  benefit  of 
the  assignee.  Any  compromise  or  adjustment  of  the  cause  of  action 
by  the  original  parties,  made  after  notice  of  the  assignment,  and  with- 
out the  consent  of  the  assignee,  will  be  void  as  against  him.  Andrews 
V.  Becker,  1  Johns,  cases,  411 ;  Littlefield  v.  Story  3  Johns,  426;  Ray- 
mond V.  Squire,  11  do.  47;  Anderson  v.  Van  Allen,  12  do.  343;  Jones 
V.  Withe,  13  Mass.  304;  Welch  v.  Mandcville,  1  Wheaton,  233;  Mc- 
Cullom  V.  Coxe,  1  Dallas,  134.  A  partial  assignment,  however,  of  the 
chose  in  action,  will  not  sufiice  to  bring  the  case  within  the  principle. 
The  whole  cause  of  action  must  be  assigned.  It  was  well  remarked 
by  Justice  Story,  in  Mandcville  v.  Welch,  5  Wheaton,  277,  that  "a 
creditor  shall  not  be  permitted  to  split  up  a  single  cause  of  action  into 
many  actions,  without  the  assent  of  his  debtor,  since  it  may  subject 
him  to  many  embarrassments  and  responsibilities  not  contemplated  in 
his  original  contract.  He  has  a  right  to  stand  upon  the  singleness  of 
his  original  contract,  and  to  decline  any  legal  or  c([uitable  assignments, 
by  which  it  may  be  broken  into  payments.     When  he  undertakes  to 


26  TRUSTS.  (Part  2 

pay  an  integral  sum  to  his  creditor,  it  is  no  part  of  his  contract  that  he 
shall  be  obliged  to  pay  in  fractions  to  any  other  persons.  In  the  case 
before  us,  it  is  not  pretended  that  there  was  an  assignment  of  the  en- 
tire cause  of  action.  By  the  terms  of  the  agre'ement,  Burgess  was  only 
to  receive  a  portion  of  the  proceeds  of  the  bond.  This  gave  him  no 
power  over  the  suit.  Chapman  had  not  so  parted  with  his  interest  in 
the  bond  as  to  lose  his  right  to  control  it.  vShattuck  was  not  bound 
to  notice  the  claim  of  Burgess.  The  parties  to  the  record  were  at  full 
liberty  to  compromise  the  case,  and  having  done  so,  the  circuit  court 
did  right  in  carrying  their  stipulation  into  effect.  The  judgment  of 
the  circuit  court  is  affirmed  with  costs. 
Judgment  affirmed. 


STONE  v.  PRATT. 

(Supreme  Court  of  Illinois,  1860,  35   111.   IG.) 

Caton,  C.  J.  On  the  23rd  of  September,  1852,  A.  Pratt,  by  in- 
denture, agreed  to  sell  and  convey  to  D'Wolf,  or  his  assigns,  several 
parcels  of  land  for  the  gross  sum  of  four  thousand  and  fifty  dollars, 
all  on  time  except  one  hundred  dollars;  and  D'Wolf,  by  the  same  in- 
strument, agreed  to  pay  the  purchase  money  as  therein  stipulated. 

On  the  15th  of  January,  1853,  Stone  purchased  of  D'Wolf  fifteen 
acres,  part  of  the  premises  which  Pratt  had  sold  and  agreed  to  con- 
vey to  D'Wolf.     .     .     . 

Stone,  insisting  that  by  the  purchase  of  the  contract,  he  was  en- 
titled to  recover  the  money  due  thereon  in  place  of  Pratt,  and  that 
Pratt  was  thereby  in  effect  fully  paid  the  purchase  money  for  which 
he  had  agreed  to  convey  the  premises  sold  to  D'Wolf,  filed  this  bill 
to  compell  Pratt  to  convey  to  him  the  fifteen  acres,  which  he  had  pur- 
chased  of    D'Wolf,   parcel   of   that    which    D'Wolf    had   bought    of 

Pratt.     .     .     . 

It  is  a  well  settled  rule  of  law,  that  an  entire  contract  cannot  be 
divided  so  as  to  compel  a  party  to  perform  it  in  parcels,  either  to 
different  persons  or  at  different  times.  When  D'Wolf  sold  a  part  of  the 
premises  to  Stone,  he  could  not  thereby  impose  the  legal  obligation 
upon  Pratt  to  convey  that  portion  to  Stone,  and  the  balance  to  him- 


CI].    5)  COMPARED    WITH    SIMILAR  RELATIONS.  27 

self.  That  would  be  making  it  in  fact  two  contracts  instead  of  one. 
It  was  asking  him  to  make  satisfaction  to  two  instead  of  one. 
In  case  of  disagreement  it  exposed  him  to  two  prosecutions  instead 
of  one,  and  required  him  to  make  two  deeds  instead  of  one.  This  is 
a  hardship  which  the  common  law  will  never  allow  to  be  imposed  upon 
a  promisor  or  an  obligor.  Nor  is  this  principle  of  the  common  law 
ignored  by  courts  of  equity,  although  in  exceptional  cases  they  will 
overlook  it,  where  it  is  necessary  to  protect  the  rights  of  an  innocent, 
fair  and  bona  fide  purchaser  against  a  contemplated  fraud. 


JAMES  V.  NEWTON. 

(Supreme  Court  of  Massachusetts,  1886,  142  Mass.  366,  8  N.  E.  122.) 

Field,  J.     The  assignment  in  this  case  is  a  formal  assignment,  for 

value,  of  "the  sum  of  six  hundred  dollars  now  due  and  to  become  due 

a  contract  for  building  a  grammar  school-house  and  it  is  agreed  that 

and  payable  to  me"  from  the  city  of  Newton,  under  and  by  virtue  of 

sum  "shall  be  paid  out  of  the  money  reserved  as  a  guaranty  by  said 

city,"  and  the  assignee  is  empowered  "to  collect  the  same."     There  is 

no  doubt  that  it  would  operate  as  an  assignment  to  the  extent  of  $600, 

if  there  can  be  an  assignment,  without  the  consent  of  the  debtor,  of  a 

part  of  a  debt  to  become  due  under  an  existing  contract ;  and  the  cases 

that  hold  that  an  order  drawn  on  a  general  or  a  particular  fund  is  not  an 

assignment  pro  tanto,  unless  it  is  accepted  by  the  person  on  whom  it 

is  drawn,  need  not  be  noticed.    That  a  court  of  law  could  not  recognize 

and  enforce  such  an  assignment,  except  against  the  assignor  if  the 

money  came  into  his  hands,  is  conceded.     The  assignee  could  not  sue 

at  law  in  the  name  of  the  assignor,  because  he  is  not  an  assignee  of  the 

whole  of  the  debt.    He  could  not  sue  at  law  in  his  own  name,  because 

the  city  of  Newton  has  not  promised  him  that  it  will  pay  him  $600. 

The  $600  is  expressly  made  payable  "out  of  the  money  reserved  as 

a  guaranty  by  said  city ;"  and,  by  the  contract,  the  balance  reserved 
was  payable  as  one  entire  sum ;  and  at  law  a  debtor  cannot  be  compelled 

to  pay  an  entire  debt  in  parts,  either  to  the  creditor  or  to  an  assignee 

of  the  creditor,  unless  he  promises  to  do  so.    Courts  of  law  originally 

refused  to  recognize  any  assignment  of  choses  in  action  made  without 


28  TRUSTS.  (Part  2 

the  assent  of  the  debtor,  but  for  a  long  time  tliey  have  recognized  and 
enforced  assignments  of  the  whole  of  a  debt,  by  permitting  the  assignee 
to  sue  in  the  name  of  the  assignor,  mider  an  implied  power,  which  they 
hold  to  be  irrevocable.  Partial  assignments  such  courts  have  never 
recognized,  because  they  hold  that  an  entire  debt  cannot  be  divided 
into  parts  by  the  creditor  without  the  consent  of  the  debtor.  It  is 
wholly  a  question  of  procedure,  although  the  common  law  procedure 
is  not  adapted  to  determining  the  rights  of  different  claimants  to  parts 
of  a  fund  or  debt.  The  rule  has  been  established,  partially  at  least, 
on  the  ground  of  the  entirety  of  the  contract,  because  it  is  held  that 
a  creditor  cannot  sue  his  debtor  for  a  part  of  an  entire  debt,  and,  if 
he  brings  such  an  action  and  recovers  judgment,  the  judgment  is  a  bar 
to  an  action  to  recover  the  remaining  part.  There  must  be  distinct 
promises  in  order  to  maintain  more  than  one  action.  Warren  v.  Com- 
ings, 6  Cush.  103. 

It  is  said  that,  in  equity,  there  may  be,  without  the  consent  of  the 
debtor,  an  assignment  of  a  part  of  an  entire  debt.  It  is  conceded  that, 
as  between  assignor  and  assignee,  there  may  be  such  an  assignment. 
The  law  that,  if  the  debtor  assents  to  the  assignment  in  such  a  manner 
as  to  imply  a  promise  to  the  assignee  to  pay  to  him  the  sum  assigned, 
then  the  assignee  can  maintain  an  action,  rests  upon  the  theory  that 
the  assignment  has  transferred  the  property  in  the  sum  assigned  to 
the  assignee  as  the  consideration  of  the  debtor's  promise  to  pay  the 
assignee,  and  that  by  this  promise  the  indebtedness  to  the  assignor  is 
pro  tanto  discharged.  It  has  been  held,  by  courts  of  equity  which  have 
hesitated  to  enforce  partial  assignments  against  the  debtor,  that  if  he 
brings  a  bill  of  interpleader  against  all  the  persons  claiming  the  debt 
or  fund,  or  parts  of  it,  the  rights  of  the  defendants  will  be  determined 
and  enforced,  because  the  debtor,  although  he  has  not  expressly 
promised  to  pay  the  assignees,  yet  asks  that  the  fund  be  distributed 
or  the  debt  paid  to  the  different  defendants  according  to  their  rights, 
as  between  themselves;  and  the  rule  against  partial  assignments  was 
established  for  the  benefit  of  the  debtor.  Public  Schools  v.  Heath, 
2  McCarter,  22.    Fourth  National  Bank  v.  Noonan,  14  Mo.  App.  243. 

In  many  jurisdictions,  courts  of  equity  have  gone  farther,  and  have 
held  that  an  assignment  of  a  part  of  a  fund  or  debt  may  be  enforced 
in  equity  by  a  bill  brought  by  the  assignee  against  the  debtor  and 
assignor  while  the  debt  remains  unpaid.     The  procedure  in  equity  is 


Cla.    5)  COMPAEED    WITH    SIMTLAK  RELATIONS.  29 

adapted  to  determining  and  enforcing  all  the  rights  of  the  parties,  and 
the  debtor  can  pay  the  fund  or  debt  into  court,  have  his  costs  if  he  is 
entitled  to  them,  and  thus  be  compensated  for  any  expense  or  trouble 
to  which  he  may  have  been  put  by  the  assignment.  But  some  courts  of 
equity  have  gone  still  farther,  and  have  held  that,  after  notice  of  a 
partial  assignment  of  a  debt,  the  debtor  cannot  rightfully  pay  the  sum 
assigned  to  his  creditor,  and,  if  he  does,  thai  this  is  no  defence  to  a 
bill  by  the  assignee.  The  doctrine  carried  to  this  extent  effects  a  sub- 
stantial change  in  the  law.  Under  the  old  rule,  the  debtor  could  with 
safety  settle  with  his  creditor  and  pay  him.  unless  he  had  notice  or 
knowledge  of  an  assignment  of  the  whole  of  the  debt;  under  this  rule, 
he  cannot,  if  he  have  notice  or  knowledge  of  an  assignment  of  any 
part  of  it. 

It  may  be  argued  that,  if  a  bill  in  equity  can  be  maintained  against 
the  debtor  by  an  assignee  of  a  part  of  the  debt,  it  must  be  on  the  ground, 
not  only  that  the  plaintiff  has  a  right  of  property  in  the  sum  assigned, 
but  also  that  it  is  the  debtor's  duty  to  pay  the  sum  assigned  to  the 
assignee;  and  that,  if  this  is  so,  it  follows  that,  after  notice  of  the 
assignment,  the  debtor  cannot  rightfully  pay  the  sum  assigned  to  the 
assignor.     ... 


TYSON  V.  JACKSON 

(In  Chancery,   1861,  30  Beav.   384.) 

The:  Master  of  the  Rolls.  I  think  the  decree  in  this  case  is  a 
matter  of  course.  The  testator  died  in  1832 ;  he  bequeathed  five  legacies 
of  £200  each  to  his  grandchildren,  one  of  them  being  given  to  Mira 
Ella  Clark.  In  1858,  she  and  her  husband  assigned  it  to  the  plaintiff, 
who  now  requires  payment;  and,  if  there  is  no  bar  by  lapse  of  time,  it 
would  be  a  matter  of  course  that  that  legacy  should  now  be  paid.  It 
appears  that  Holmes  alone  proved  the  will,  he  got  in  all  the  assets,  he 
passed  his  residuary  account  at  the  Stamp  Office,  and  paid  over  the 
the  residue,  after  deducting  the  duty,  to  the  residuary  legatee.  If  the 
case  stood  there,  could  the  executor,  apart  from  tlu-  (juestion  of  time, 
afterwards  dispute  the  right  (jf  legatee  to  receive  the  legacy?  Could 
he  require  the  legatee  to  take  an  account  of  ihe  estate  or  to  go  against 


30  TRUSTS.  (Part  2 

the  residuary  legatee  ?  It  is  clear,  when  an  executor  retains  the  money 
for  payment  of  the  legacy,  that  he  becomes,  as  in  the  case  of  Phillipo 
V.  Munnings,  2  Myl.  &  Cr.  309,  a  trustee  of  that  particular  fund  or 
sum  of  money  so  retained  distinct  from  his  character  of  executor.  It 
is  as  distinct  as  if  the  testator  had  directed  his  executor  to  pay  the 
legacy  over  to  A.  B.  in  trust  for  a  legatee,  and  it  had  been  actually 
paid  over;  A.  B.  would  then  be  a  trustee  for  the  legatee.  So  here,  the 
executor  who  has  retained  that  sum  of  money  is  in  exactly  the  same 
situation. 

But  it  does  not  end  there,  for  in  the  residuary  account  which  the 
executor  passed  in  July,  1835,  he  actually  signed  a  document,  stating 
that  he  had  "retained  in  trust,  on  the  23rd  day  of  June,  1835,  the  sum 
i  1,000  for  the  five  legatees  (mentioning  them)  being  the  five  legacies 
out  of  the  personal  estate  above  mentioned,  having  first  allowed  or 
paid  ilO  for  the  duty  thereof."  I  should  be  overruling  Phillipo  v. 
Munnings  and  all  similar  cases,  if  I  held,  that  after  signing  this  docu- 
ment stating  that  he  was  a  trustee,  and  after  paying  over  the  balance 
to  the  residuary  legatee,  the  executor  was  not  a  trustee   for  these 

legatees. 

But  the  case  does  not  even  end  there,  for  the  executor  pays  the  in- 
terest upon  the  legacy  down  to  his  death  in  November,  1840,  and  the 
bill  is  filed  in  March,  1860,  within  twenty  years.  But,  independently 
of  this,  there  is  a  distinct  and  clear  trust,  which  time  will  not  bar,  and 
upon  which  the  Statute  of  Limitations  has  no  effect  at  all. 


SECTION  II.    ESSENTIALS  TO  THE  CREATION  AND  EX- 
ISTENCE OE  THE  TRUST  RELATION 


ALDRICH  V.  ALDRICH. 
(Supreme  Court  of  Massachusetts,  1895,  172  Mass.  101,  51  N.  E.  449.) 

The  bill  alleged  that  the  testator  died  on  March  14,  1895,  leaving  a 
will  by  which  he  gave  "all  the  rest  and  residue  of  my  estate,  after  the 
payment  of  debts,"  to  his  wife.     After  appointing  her  executrix,  and 


Cll.    5)  ESSENTIALS    TO   CREATION   AND,    EXISTENCE.  31 

requesting  that  she  be  exempt  from  giving  sureties  on  her  bond  and 
be  not  required  to  file  any  schedule  of  property  in  the  Probate  Court, 
he  proceeded,  "I  give  all  my  estate  to  my  said  wife  to  the  end  that  she 
may  be  able  to  maintain  a  home  for  herself,  and  one  where  she  can  re- 
ceive all  our  dear  children,  as  we  have  been  accustomed  to  do  during  our 
joint  lives.  I  am  confident  she  will  manage  with  good  discretion  and 
fidelity  what  is  committed  to  her,  and  that  when  she  shall  no  longer 
need  the  property  it  will  be  equally  divided  among  all  our  children,  or 
their  representatives."     .     .     . 

Morton,  J.  If  the  testator  had  intended  to  create  a  trust  in  favor 
of  his  children  at  his  wife's  death,  there  can  be  no  doubt  that  he  knew 
how  to  do  it  in  clear  and  unmistakable  terms,  and  it  is  almost  incon- 
ceivable that,  if  such  was  his  purpose,  he  should  have  expressed  him- 
self in  the  manner  in  which  he  has  done. 

There  is  no  doubt  that  words  of  recommendation,  or  of  confidence, 
entreaty,  hope,  or  desire,  have  been  held  sufficient  under  some  cir- 
cumstances to  create  a  trust.  But,  speaking  generally,  this  was  be- 
cause in  such  cases  such  a  construction  was  supposed  to  carry  out  the 
intention  of  the  testator.  If  an  arbitrary  rule  seems  to  have  been  laid 
down  at  one  time  in  regard  to  what  would  constitute  a  precatory  trust, 
there  can  be  no  doubt,  we  think,  that  the  tendency  of  later  decisions 
has  been,  if  not  to  relax  the  rule  thus  laid  down,  at  least  not  to  ex- 
tend it.  Hess  V.  Singler,  114  Mass.  56.  Lambe  v.  Eames,  L.  R.  10 
Eq.  267;  S.  C.  6  Ch.  App.  597. 

In  the  present  case  there  is  what  clearly  would  constitute  in  law, 
if  it  stood  alone,  an  absolute  gift  of  the  estate  to  the  wife.  Then  fol- 
lows, after  one  or  two  intervening  clauses,  thri  one  on  which  the  plain- 
tiff relies.  This  was  intended  by  the  testator,  it  seems  to  us,  to  express 
his  reason  for  the  gift  to  his  wife  and  his  confidence  in  her,  and  not 
to  cut  down  or  affect  the  absolute  character  of  the  gift  which  he  had 
previously  made  to  her.  It  is  true  that  he  says  in  substance  that  he 
expects  that  the  property,  when  she  shall  not  longer  need  it,  will  be 
divided  equally  between  the  children  and  their  representatives.  But 
there  is  nothing  which  renders  it  obligatory  on  her  to  do  this,  and 
therefore  one  of  the  features  of  a  precatory  trust  is  wanting.  See 
Warner  v.  Bates,  98  Mass.  274;  vSpooner  v.  Lovejoy,  108  Mass.  529; 
Hess  V.  vSingler,  114  Mass.  56.     .     .     . 

The  cases  which  we  have  cited  do  not  resemble  in  all  respects  the 
one  at  bar,  and  there  are  English  and  American  cases  which  seem  to 


32  TEUSTS.  -       (Part  2 

support  the  view  for  which  the  plaintiff  contends.  But  the  question 
is,  whether,  taking  the  will  as  a  whole,  it  was  the  intention  of  the 
testator  to  create  a  trust,  and  we  are  of  opinion  that  it  was  not, 
and  that  the  construction  which  we  have  adopted  is  in  harmony  with 
the  more  recent  English  and  American  cases. 
Bill  dismissed. 


LEEPER  V.  TAYLOR. 

(Supreme  Court  of  Missouri,  1892,  111  Mo.  312,  19  S.  W.  955.) 

BivACK,  J.  .  .  .  The  defendant's  answer  admits  the  execution  of 
the  declaration  of  trust,  and  it  proceeds  upon  the  theory  that  the  in- 
strument was  duly  delivered  to  Mr.  Lipscomb  for  the  defendant's 
father  and  mother.  It  is  useless  to  discuss  the  question  of  the  execu- 
tion and  delivery  of  the  instrument,  for  both  are  admitted  by  the 
answer. 

The  point  is  made,  however  that  it  is  void  for  want  of  consideration. 
It  may  be  conceded  that  a  court  of  equity  will  not  enforce  an  executory 
agreement  based  upon  a  voluntary  consideration.  But  a  settler  pos- 
sessed of  a  legal  title  may  create  a  valid  trust  therein  by  a  declaration 
that  he  holds  the  title  in  trust  for  the  other  person.  A  transfer  of  the 
title  is  not  necessary.  Bispham  on  Equity  [4  Ed.]  sec.  67.  Here  the 
trust  was  duly  declared  by  an  instrument  in  writing  and  under  seal. 
It  is  a  perfect,  complete  trust ;  and  such  a  trust  will  be  enforced,  not- 
withstanding the  consideration  is  voluntary.  Lane  v.  Ewing,  31  Mo. 
75.  If  a  trust  has  been  completely  declared,  the  absence  of  a  valuable 
consideration  is  immaterial.  A  perfect  or  complete  trust  is  valid  and 
enforceable,  although  purely  voluntary.  Pomeroy  on  Equity  Juris- 
prudence [2  Ed.]  sees.  996,  997.  As  this  trust  is  perfect  and  complete, 
it  must  be  enforced,  though  voluntary.  But  it  recites  a  valuable  con- 
sideration, and  the  circumstances  show  clearly  enough  that  it  was 
executed  in  consideration  of  the  absolute  deed  of  the  premises  pre- 
viously made  by  the  beneficiaries.  But,  be  this  as  it  may,  the  trust  is 
perfect,  and  must  be  enforced,  though  based  upon  a  voluntary  con- 
sideration only.     .     .     . 


Cll.    5)  ESSENTIALS    TO   CEEATIOX   AXP.    EXISTENCE.  33 


BADGLEY  v.  VOTRAIN. 

(Supreme  Court  of  Illinois,  1873,  68  111.  25.) 

This  was  a  bill  in  equity  exhibited  in  the  St.  Clair  circuit  court  by 
August  Votrain,  a  grandson  of  Etienne  Deshayes,  deceased,  who  died 
intestate,  leaving  complainant  and  eight  other  grandchildren  his  only 
heirs  at  law.  These  other  eight  grandchildren,  together  with  the  ad- 
ministrator of  the  intestate's  estate,  were  made  parties  defendant. 
The  bill  was  founded  upon  and  sought  to  enforce  the  provisions  of 
the  following  instrument  in  writing: 

"Know  all  men  by  these  presents,  that  I  have  assigned  to  August 
Votrain  the  sum  of  $12,000  of  my  property,  which  amount  he  is  to 
draw  before  my  property  is  divided ;  and  he  is  to  inherit  one-third  of 
the  rest  of  my  property,  which  is  to  be  divided  into  three  parts,  after 
my  death.  The  $12,000  which  I  have  assigned  to  him  consists  of 
$9800  mortgages  and  $2200  in  notes,  which  I  have  assigned  upon  these 
conditions : 

First — That  I  retain  said  assigned  mortgages  and  notes,  and  re- 
ceive the  interest  thereof  during  my  life. 

Secondly — That  I  promise  to  pay  said  August  Votrain,  yearly,  $200, 
the  first  payment  to  be  made  January  1st,  1872,  and  $200  every  year 
thereafter. 

Thirdly — These  foregoing  conditions  are  expressly  understood  to 
be  upon  condition  that,  if  the  said  August  Votrain  should  die  before 
my  death,  the  amount  of  property  so  assigned  shall  revert  to  me  and 
remain  my  property  as  if  it  had  not  been  assigned  to  him,  and  this 
instrument  of  v/riting  shall  be  null  and  void.  Belleville,  111.,  September 
6th,  1871. 

ETIENNE  DESHAYES.  (SEAL). 

his 
AUGUST  X  VOTRAIN.  (SEAL), 
mark 
C.  T.  Elles,  witness. 

The  bill  alleges  that,  March  27,  1871,  the  intestate  was  the  owner 
and  payee  of  five  several  promissory  notes  for  divers  amounts,  secured 
by  mortgage ;  that  for  the  purpose  of  making  a  gift  or  advancement 
2  Eq.— 3 


34  TRUSTS,  (Part  2 

to  complainant,  intestate  on  that  clay  executed  on  the  back  of  these 
several  notes  and  mortgages  an  assignment,  as  follows : 

"For  value  received,  I  hereby  assign,  the  within  note  with  mortgage 
to  August  Votrain,  this  27th  day  of  March,  1871. 

ETIENNE  DESHAYES." 

But  there  was  no  proof  as  to  the  nature  of  this  transaction  or  its 
purpose. 

These  notes  are  described  and  designated  in  the  bill  as  "Exhibit  A." 
The  bill  also  alleges  that,  September  6,  1871,  intestate  was  likewise 
owner  of  five  other  promissory  notes,  payable  to  him,  for  divers 
amounts,  which  are  designated  as  "Exhibit  B ;"  these  notes  had  no 
assignment  upon  them.  Alleges  that,  at  his  death,  intestate  was  the 
owner  of  other  personal  property  of  the  value  of  $1000.  Complainant 
claims,  by  his  bill,  that,  under  the  instrument  of  September  6,  1871,  he 
is  entitled  to  have  transferred  to  him  notes  and  mortgages  to  the 
amount  of  $12,000,  and  one-third  of  the  other  property  of  intestate, 
and  prays  that  the  administrator  be  decreed  to  transfer  and  set  apart 
the  same.     .     .     . 

McAli.iste;r,  J.  This  case  is  clearly  distinguishable  from  that  of 
Otis  V.  Beckwith,  49  111.  121,  relied  on  by  counsel  for  defendant  in 
error.  In  that  case  the  subject-matter  of  the  settlement  was  a  policy 
of  insurance  upon  the  life  of  the  settler,  which  was  not  assignable  at 
law.  The  instrument  of  assignment  contained  an  express  declaration 
of  trust  in  favor  of  the  donor's  three  sons.  The  donor,  upon  executing 
it,  gave  explicit  notice  of  the  fact  of  the  assignment  and  its  purpose  to 
both  the  assignee  and  the  insurance  company.  Whereupon  the  former 
made  a  formal  acceptance  of  the  trust,  and  the  latter  noted  the  assign- 
ment in  their  books,  in  accordance  with  their  regulations  in  such  cases. 
The  donor  had  done  everything  in  his  power  essential  to  the  completion 
of  the  transaction.  The  delivery  of  the  policy  to  the  assignee  was  not 
essential.  No  further  conveyance  from  the  donor  was  requisite.  The 
trust  was  perfectly  created,  and  nothing  was  required  of  the  court  but 
to  give  it  efifect  as  an  executed  trust. 

But  the  case  in  hand  differs  in  essential  particulars.  Here,  there 
is  no  declaration  of  trust,  and  we  are  satisfied,  from  a  careful  exam- 
ination of  the  instrument  of  September  6,  1871,  that  the  donor  had 
no  intention  of  thereby  creating  the  relation  of  trustee  and  cestui  que 
trust  between  himself  and  defendant  in  error  in  respect  to  any  fund  or 
choses  in  action.     That  instrument  is  wholly  executory  hi  its  effect, 


Ch.    5)  ESSENTIALS    TO    CREATION   AND.    EXISTENCE. 


35 


and,  aside  from  the  promise  by  the  donor  to  pay  defendants  $200  an- 
nually, during  the  donor's  life,  it  is  wholly  testamentary  in  its  nature. 
So  far  as  the  provision  is  concerned,  requiring  $12,000  to  be  paid  over 
to  defendant  out  of  the  donor's  estate  after  his  death,  and  then,  that 
defendant  should  take  one-third  of  the  residue,  the  instrument  pur- 
ports to  be,  and  is,  a  mere  testamentary  disposition  of  the  donor's 
estate,  not  executed  in  conformity  with  the  Statute  of  Wills,  and  we 
would,  therefore,  be  no  more  justified  in  inferring  an  intention  on 
the  donor's  part  to  constitute  himself  trustee,  during  his  life,  of  the 
property  out  of  which  the  $12,000  were  to  be  paid  to  defendant,  than 
if,  instead  of  this  instrument,  he  had  made  a  will  containing  the  same 
provision.    These  propositions  we  regard  as  clear  and  incontrovertible. 

If.  then,  there  is  the  absence  of  an  express  declaration  of  trust  and 
of  an  intention  to  create  one  on  the  part  of  the  donor  in  favor  of  de- 
fendant, what  is  the  precise  nature  of  the  relief  sought  by  defendant, 
in  bringing  his  bill  in  the  court  below?  It  was  to  obtain  the  assistance 
of  a  court  of  equity  to  constitute  him  cestui  que  trust  upon  this  volun- 
tary instrument. 

In  Ellison  v.  Ellison,  6  Ves.  656  Lord  Eklon  said:  'T  take  the  dis- 
tinction to  be  that,  if  you  want  the  assistance  of  the  court  to  constitute 
you  cestui  que  trust,  and  the  instrument  is  voluntary,  you  shall  not  have 
that  assistance  for  the  purpose  of  constituting  you  cestui  que  trust, 
as,  upon  a  covenant  to  transfer  stock,  etc.,  if  it  rests  in  covenant,  and 
is  purely  voluntary,  this  court  will  not  execute  that  voluntary  covenant. 
But  if  the  party  has  completely  transferred  stock,  etc.,  though  it  is 
voluntary,  yet,  the  legal  conveyance  being  completely  made,  the  equi- 
table interest  will  be  enforced  by  this  court." 

In  the  reliable  elementary  works,  the  result  of  the  decisions  is  stated 
to  be,  that,  if  the  trust  is  perfectly  created,  so  that  the  donor  or  settlor 
has  nothing  more  to  do,  and  the  person  seeking  to  enforce  it  has  need 
of  no  further  conveyances  from  the  settlor,  and  nothing  is  required 
of  the  court  but  to  give  full  effect  to  the  trust  as  an  executed  trust,  it 
will  be  carried  into  effect,  although  it  was  without  consideration,  and 
the  possession  of  the  property  was  not  changed.  I'.ui  if.  on  the  other 
hand,  the  transaction  is  incomplete,  and  its  final  completion  is  asked 
in  equity,  the  court  will  not  interpose  to  perfect  the  settlor's  liability 
without  first  inquiring  into  the  origin  of  the  claim,  and  tlif  nature  of 
the  consideration  given.     Perry  on  Trusts,  sec.  98;  Adams,  Eq.  6th 


36  TRUSTS.  (Part  2 

Am.  Ed.  194-5;  Lewin  on  Trusts,  2d  Am.  Ed.  134,  135;  2  Story's  Eq. 
Jur.  sec.  793a. 

In  McFadden  v.  Jenkyns,  1  Hare,  .458,  Sir  J.  Wigram,  V.  C,  after 
citing  all  the  principal  English  decisions,  made  these  observations : 
"There  may  be  difficulty  in  reconciling  with  each  other  all  the  cases 
which  have  been  cited.  Perhaps  they  are  to  be  reconciled  and  explain- 
ed upon  the  principle  that  a  declaration  of  trust  purports  to  be,  and  is, 
in  form  and  substance,  a  complete  transaction,  and  the  court  need  not 
look  beyond  the  declaration  of  trust  itself,  or  inquire  into  its  origin 
that  it  may  be  in  a  position  to  uphold  and  enforce  it.  Whereas  an 
agreement  or  attempt  to  assign,  is,  in  form  and  nature,  incomplete,  and 
the  origin  of  the  transaction  must  be  inquired  into  by  the  court;  and 
where  there  is  no  consideration,  the  court,  upon  its  general  principles, 
cannot  complete  what  it  finds  imperfect." 

These  views'  of  that  great  judge  seem  to  have  been  cautiously  ex- 
pressed, but  to  us  they  seem  to  be  a  complete  exposition  of  the  prin- 
ciple which  ought  to  govern  in  a  case  like  this. 

So,  in  Beech  v.  Keefe,  18  Beav.  285,  Sir  John  Romilly,  Master  of 
the  Rolls,  quoting  from  his  judgment  in  Bridge  v.  Briggs,  16  Beav. 
315,  says:  "If  a  person,  possessed  of  stock,  execute  a  declaration  of 
trust  of  that  stock  in  favor  of  a  volunteer,  he  would.  I  apprehend, 
clearly  constitute  himself  a  trustee  for  the  volunteer,  and  equity  would 
execute  the  trust  and  compel  a  transfer  of  the  stock  to  the  cestui  que 
trust.  But  if  the  same  person  executed  an  assignment  of  the  stock  in 
favor  of  the  volunteer,  and  no  transfer  of  the  stock  took  place,  this, 
I  apprehend,  would  as  clearly  be  considered  to  be  no  more  than  an  im- 
perfect gift,  in  which  the  donor  had  not  done  all  that  was  in  his  power 
to  do,  and  the  donee  would  get  no  assistance  from  a  court. of  equity 
to  compel  a  transfer  of  the  stock." 

Now,  here,  as  we  have  seen,  there  was  no  declaration  of  trust,  and 
the  very  nature  of  the  instrument  precludes  the  idea  of  an  intention 
on  the  part  of  the  donor  to  create  the  relation  of  trustee  and  cestui  que 
trust  between  him  and  defendant  in  error. 

The  substance  of  the  transaction  is,  that  the  donor  executed  an  as- 
signment of  $12,000  out  of  his  estate,  in  favor  of  a  volunteer,  and  pro- 
vided for  its  payment,  after  his  death,  out  of  promissory  notes  payable 
to  himself,  some  of  which  were  secured  by  mortgages  tipon  real  estate. 
These  notes  were  capable  of  legal  transfer,  but  only  in  the  mode  pre- 


Ch.    5)  ESSENTIALS    TO   CREATION    AN  P.    EXISTENCE.  37 

scribed  by  our  statute,  viz:  by  indorsement  on  the  back  by  the  payee, 
and  dehvery.  It  could  not  be  done  by  a  separate  instrument.  Ryan  v. 
May,  14  111.  49;  Fortier  v.  Darsy,  31  111.  212. 

On  five  of  the  notes  there  had  been  an  assignment  written  by  the 
payee  some  six  months  prior  to  the  instrument  of  September  6,  1871, 
but  no  delivery.  The  circumstances  of  that  transaction  are  not  dis- 
closed. It  was  incomplete.  The  title  did  not  vest  in  the  assignee.  On 
the  other  notes  there  was  never  any  indorsement,  and  there  can  be  no 
question  that  the  legal  interest  in  all  these  notes  remained  in  the  donor 
down  to  and  at  the  time  of  his  death.  This  bill  is  brought  by  the 
volunteer,  to  have  the  court  complete  what  tlie  donor  left  incomplete, 
by  compelling  the  transfer  to  him  of  the  legal  interest  in  these  notes. 
There  being  no  consideration,  the  court,  upon  its  general  principles, 
cannot  complete  what  it  finds  thus  incomplete. 

As  was  said  by  this  court  in  Clarke  v.  Lott,  11  111.  115:  "The  prin- 
ciple is  well  settled,  that  a  court  of  equity  will  not  lend  its  aid  to 
establish  a  trust  at  the  instance  of  mere  volunteers.  If  the  transaction, 
on  which  the  voluntary  trust  is  attempted  to  be  esablished,  is  still 
executory  or  incomplete,  the  court  will  decline  all  interference  in  the 
matter." 

There  was  something  said  in  argument  by  counsel  for  defendant  in 
error,  about  there  being  a  meritorious  consideration.  That  might, 
perhaps,  arise  in  favor  of  a  wife  or  child,  where  there  is  a  moral  obli- 
gation and  duty  of  support  on  the  part  of  the  donor.  But  here  the 
defendant  is  a  grandchild,  and  he  asks  the  aid  of  the  court  in  com- 
pleting this  transaction  as  against  the  other  grandchildren  of  the  donor, 
whose  claim  is  equally  meritorious.  There  was  an  attempt  made  by 
plaintifif  below  to  show  by  the  declarations  of  the  donor,  that  the  other 
children  were  provided  for,  but  whatever  force  there  was  in  that 
evidence,  it  was  rebutted  by  the  evidence  of  defendants  below. 

The  decree  of  the  court  below  will  be  reversed  and  the  cause  re- 
manded. 

Decree  reversed. 


LOCKREN  V.  RUSTAN. 

(Supreme  Court  of  North  Dakota,  1899,  9  N.  Dak.  4:i,  81    N.  W.  (iO.) 

Bartholomew,  C.  J.     .     .     .     In  1881,  Ole  Ilelgeson  Rustan,  with 
his  family,  removed  from  the  vState  of  Minnesota  to  Walsh  county  in 


88  TRUSTS.  (Part  2 

this  state,  and  acquired  the  title  to  the  Walsh  county  lands  here  in 
dispute  under  the  government  land  laws.  While  resident  in  Minnesota 
he  contracted  quite  a  large  indebtedness,  which  remained  unpaid  when 
he  settled  in  Walsh  county.  He  received  a  receiver's  final  receipt  for 
160  acres  of  said  land  on  December  20,  1881,  and  very  soon  thereafter 
he  and  his  wife  joined  m  a  conveyance  of  said  land  by  warranty  deed 
to  one  M.  Raumin.  Said  deed  was  made  without  any  consideration 
whatever,  but  with  the  understanding  that  the  said  Raumin  should 
convey  said  land  to  Helge  O.  Rustain,  the  son  of  Ole  Helgeson  Rustan, 
and  the  same  was  so  conveyed  a  few  days  thereafter  by  warranty 
deed.  Helge  O.  Rustan  was  at  that  time  a  lad  about  13  years  of  age. 
On  August  10.  1883,  Ole  Helgeson  Rustan  received  the  final  receiver's 
receipt  upon  the  other  quarter  section  of  land  in  Walsh  county,  and 
very  soon  thereafter  he  joined  with  his  w'lie  in  a  conveyance  of  the 
same  to  his  brother-in-law,  one  Mylie.  This  conveyance  was  also 
without  consideration,  but  made  with  the  understanding  that  the 
said  land  should  be  conveyed  to  said  Helge  O.  Rustan,  and  it  w^as 
so  conveyed  in  1887.  The  avowed  object  of  Ole  Helgeson  Rustan 
in  thus  placing  the  title  to  the  land  in  his  own  son  was,  as  he  expresses 
it,  "to  get  protection  until  he  could  pay  his  debts."  The  law  would  say 
upon  this  admission  that  his  object  was  to  hinder,  delay,  or  defraud 
his  creditors,  and  we  will  so  treat  it. 

The  Rustan  family  continued  to  reside  upon  said  land.  Ole  Helge- 
son Rustan,  the  father,  treated  the  land  in  all  respects  as  if  it  were  his 
own.  He  paid  all  expenses  incurred  in  improving  and  cultivating  the 
same,  and  received  all  the  produce  therefrom.  Helge  O.  Rustan  did 
not  know  that  the  title  to  the  land  was  in  his  name  until  about  1890, 
as  the  testimony  shows.  He  had  executed  mortgages  upon  some  of 
the  land,  but  had  signed  the  papers  at  the  direction  of  his  father,  with- 
out understanding  what  they  were.  But  about  1890  the  matter  was 
talked  over  and  explained,  and  the  father  told  him  that  the  land  must 
be  deeded  back  whenever  he  (the  father)  desired  it,  to  which  the  son 
fully  assented.  In  1892  the  father  purchased  the  land  in  Cavalier 
county,  paying  the  full  purchase  price  himself,  but  had  the  title 
transferred  to  his  son  Helge,  for  the  same  fraudulent  pvirpose  that 
induced  him  to  have  the  title  to  the  Walsh  county  land  placed  in  his 
son.  This  the  son  well  understood  at  the  time,  and  promised  to  con- 
vey it  to  the  father  whenever  by  him  so  requested.     Such  was  the  con- 


Cll.    5)  ESSENTIALS    TO   CREATION   AXP,    EXISTENCE.  39 

dition  of  the  title  and  the  relative  rights  of  the  parties  on  August  20, 
1896,  when  the  son, — he  says  at  the  request  of  his  father, — without 
any  money  consideration  whatever,  conveyed  all  the  land  to  his  father. 
It  should  be  stated  that  prior  to  this  time,  and  prior  to  the  bringing  of 
the  breach  of  promise  action,  Ole  Helgeson  Rustan  had  settled  all 
his  old  debts,  and  owed  nothing  except  what  was  secured.  Under 
this  state  of  facts,  was  the  conveyance  from  son  to  father  in  fraud  of 
the  rights  of  the  plaintiff  ? 

It  must  be  conceded  that  no  such  conveyance  could  have  been 
enforced.  There  was  no  trust  relation  between  these  parties,  either 
by  contract  or  as  a  resulting  trust  or  ex  maleficio.  Where  a  trust 
exists,  it  can  be  enforced  in  equity.  The  son  held  the  full  legal  title, 
and  he  held  the  equitable  title,  as  against  all  the  world  except  the 
creditors  of  the  father.  They,  so  far  as  we  know,  never  at  any  time 
sought  to  disturb  the  title  of  the  son.  The  land  in  the  hands  of  the 
son  was  subject  to  his  debts.  Had  a  creditor  of  his  obtained  judg- 
ment against  him  while  the  title  stood  in  his  name,  the  judgment  would 
have  been  a  lien  upon  the  land,  and  no  transfer  to  the  father  could 
have  affected  the  lien.  To  that  extent  the  grantee,  in  a  conveyance 
made  to  hinder,  delay,  or  defraud  creditors,  is  the  owner  of  the 
land.  But,  as  to  strangers  to  the  conveyance,  the  property  rights  of  the 
fraudulent  grantor  in  the  subject  of  the  grant  are  superior  to  the 
property  rights  of  the  fraudulent  grantee.  In  other  words,  in  a  con- 
test between  the  creditors  of  the  grantor  and  the  creditors  of  the 
grantee,  the  former  will  succeed.  Bank  v.  Lyle,  7  Lea,  431 ;  Clark  v. 
Rucker,  7  B.  Mon.  583.  This  shows  that  the  property  rights  of  the 
vendor  have  not  been  extinguished.  But  the  law%  for  reasons  of  public 
policy  and  to  discourage  fraudulent  conveyances,  will  not  permit  him 
to  assert  them.  If,  then,  these  property  rights  exist;  if  the  grantor 
purchased  and  paid  for  the  property  and  has  never  received  anything 
therefor  from  the  grantee;  if  the  only  right  or  equity  that  the 
grantee  has  in  the  property  is  his  right  to  claim  the  protection  of  a 
technical  rule  of  law  that  will  not  permit  him  to  be  attacked,  not  by 
reason  of  any  rights  in  him.  but  solely  on  iho  ground  of  public  policy, 
— it  must  follow  that,  in  good  conscience  rmd  morals,  the  grantee 
ought  to  reconvey  lo  the  grantor,  if  the  latter  so  request.  In  Wait, 
Fraud.  Conv.  §  398,  it  is  .said:  "Though  a  reconveyance  cannot  be 
enforced,  the  fraudulent  vendee  is  said,  in  some  of  the  cases,  to  be 


4.0  TRUSTS.  (Part  2 

under  a  high  moral  and  equitable  obligation  lo  restore  the  property. 
The  law  is  not  so  unjust  as  to  deny  to  men  the  right,  while  it  is  in 
their  power  to  do  so,  to  recognize  and  fulfill  iheir  obligations  of  honor 
and  good  faith ;  and,  until  the  creditors  of  the  vendee  acquire  actual 
liens  upon  the  property,  they  have  no  legal  or  equitable  claims  in 
respect  to  it  higher  than  or  superior  to  those  of  the  grantor."  See, 
also,  Biccohi  v.  Casey-Swasey  Co.  (Tex.  Sup.)  42  S.  W.  Rep.  963; 
Davis  V.  Graves,  29  Barb.  480;  Dunn  v.  Whalen  (Sup.)  21  N.  Y. 
Supp.  869 ;  Moore  v.  Livingston,  14  How.  Prac.  1 ;  Starr  v.  Wright, 
20  Ohio  St.  107;  White  v.  Brocaw,  14  Ohio  St.  341 ;  Bank  v.  Brady, 
96  Ind.  509;  Sabin  v.  Anderson  (Or.)  49  Pac.  Rep.  872.  There  being, 
then,  a  moral  obligation  of  the  highest  type  resting  upon  the  son  to 
convey  to  the  father,  the  discharge  of  that  obligation  furnishes  ample 
consideration  for  such  conveyance,  and  the  conveyance,  if  received 
in  good  faith,  works  no  legal  fraud  upon  any  party  whose  rights  to 
the  property  conveyed  are  not  in  law  superior  to  the  rights  of  the 
father.     .     .     . 

In  the  case  at  bar  it  is  too  plain  for  suggestion  that  Ole  Helgeson 
Rustan,  in  receiving  the  conveyance  from  his  son,  occupied  the  position 
of  one  who  received  the  conveyance  in  extinguishment  of  a  pre-exist- 
ing obligation.  He  had  the  highest  motive  of  self-interest  to  serve. 
If  he  did  not  obtain  the  deed  to  the  land,  circumstances  might,  and 
probably  would,  make  it  forever  impossible  for  the  son  to  fulfill  his 
obligation  to  his  father.  True,  he  knew  that,  by  receiving  satisfaction 
of  this  obligation,  he  necessarily  postponed  the  claim  of  plaintiif. 
But  he  was  under  no  obligation,  legal  or  moral,  to  protect  her  rights. 
Indeed,  in  some  respects,  his  equities  are  greater  than  those  of  an 
ordinary  creditor  who  receives  a  conveyance.  Generally,  the  grantor 
cancels  his  obligation  by  transferring  his  own  property  in  satisfaction 
thereof.  Here  the  grantor  canceled  his  obligation  by  transferring  to 
the  grantee  what  was  in  morals,  but  not  in  law,  the  grantee's  own 
property.  We  are  clear  that  no  fraud  can  be  charged  to  this  grantee, 
unless  the  evidence  and  circumstances  establish  the  fact  that  he  took 
the  conveyance,  not  to  save  his  property,  but  to  hinder,  delay,  or 
defraud  the  plaintiif.  We  do  not  think  that  is  the  case.  True,  the 
ever-present  thought  that  he  regarded  plaintifif's  claim  as  unjust,  and 
was  bitterly  opposed  to  permitting  her  to  receive  anything  thereon, 
makes  it  difficult  to  draw  the  distinction.  The  grantee  testifies  that  he 


Cll.    5)  ESSENTIALS    TO   CREATION   AND.    EXISTENCE.  41 

told  his  son  that  he  wanted  the  land  back,  and  requested  him  to  make 
the  deed ;  that  he  knew  his  son  was  getting  into  trouble  by  reason  of 
plaintiff's  claim,  and  he  feared  that,  if  the  land  was  left  in  the  son's 
name,  the  plaintiff  might  get  hold  of  it;  that  she  might  get  a  judgment 
that  would  be  a  lien  upon  it.     He  categorically  denies  that  his  object 
in  taking  the  conveyance  was  to  hinder  or  defraud  plaintiff,  and  this. 
we  think,  is  substantially  true,  notwithstanding  his   aversion  to  her 
recovering  anything.     The  desire  that  he  may  have  had  that  his  son 
should  not  pay  this  claim  must,  in  the  nature  of  things,  have  been 
entirely   subordinate  to  his   desire  that  the  son   should  not   pay  the 
debt  with  his  (the  father's)  property.     His  interest  in  protecting  and 
preserving  his  own  property  must  have  been  immeasureably  greater 
than   any   interest   he   could   have   in    defrauding   plaintiff.      We   are 
bound  to  believe  that  he  was  influenced  by  the  stronger,  and  not  by  the 
weaker,  motive,  particularly  when  all  the  direct  evidence  so  declares. 
And,  indeed,  in  protecting  and  preserving  his  own  property,  he  could 
not  defraud  plaintiff,  because  she  could  have  no  claim  upon  his  prop- 
erty.   But  it  is  urged  that  it  is  certain  that  he  did  not  take  the  property 
back  because  he  wished  to  preserve  it  for  himself,  for  the  reason  that 
he  immediately  conveyed  it  to  another  son,  and  the  trial  court  found 
that  this  transfer  was  without  consideration.     We  do  not  deem  this 
latter  point   of   importance.      It   is   clear   to   us   that   in   deeding  the 
property  to  another  son  he  acted   ex  abiindanti  cautela,  and   in  the 
mistaken  belief  that  he  was  thus  placing  another  barrier  between  his 
property  and  the  danger  that  menaced  it.     We  find  nothing  in  the 
record  that  requires  a  reversal.    We  adopt  the  judgment  and  decree  of 
the  trial  court,  which  are  in  all  things  affirmed.     AH  concur. 


JEWELL  V.  BARNEvS'  ADMINISTRATOR. 

(Kentucky  Court  of   Appeals,   V.n)\,    IK)   Ky.   329,   61  S.   W.   360.) 

Appellant,  Robert  M.  Jewell,  filed  this  suit  against  the  appellees, 
the  Louisville  Trust  Company,  as  the  administrator  with  the  will  an- 
nexed, and  vS.  vS.  Barnes,  the  residuary  devisee,  of  C.  I*.  Barnes,  de- 
ceased.    The  court  below  sustained  a  demurrer  to  his  petition,  and, 


42  TRUSTS.  (Part  2 

he  failing  to  plead  further,  dismissed  the  action.     The  only  question 
on  the  appeal  is,  therefore,  did  the  petition  state  a  cause  of  action? 

It  was  alleged  in  the  petition  that  C.  P.  Barnes  was  at  the  time  of 
his  death,  and  had  been  for  many  years  theretofore,  engaged  in  business 
as  a  jeweler,  with  his  brother,  J.  B.  Barnes,  under  the  firm  name  of 
C.  P.  Barnes  &  Co.;  that  the  business  was  a  large  one,  and  C.   P. 
Barnes  became  a  wealthy  man;  that  in  the  year  1877,  when  appellant 
was  a  small  boy,  the  deceased  took  him  into  his  employ  and  treated 
him    as  if  he  had  been  his  own  son,  often  promising  him  an  interest  in 
the  business ;  that  appellant  started  with  a  small   salary,  which  was 
increased  from  time  to  time  until  the  death  of  the  deceased,  when  he 
was  receiving  $20  a  week ;  that  the  deceased  died,  leaving  a  will  which 
was  duly  admitted  to  probate,  and  by  the  seventh  clause  of  the  will 
the  testator  provided  for  him  in  the  following  language:     "I  desire 
that  my   friend  Robert   M.  Jewell  be  retained  in  the  employ  of  the 
firm  on  such  liberal  terms  as  his  long  and   faithful   service   entitles 
him  to."     It  is  also  alleged  that  on  February  23,  1895,  within  a  month 
after  the  death   of  the  testator,   against  his  protest,   his   salary   was 
cut  down  from  $20  to  $15  a  week,  and  three  years  later,  on  February 
26,  1898,  to  $13.50  a  week;  that  about  two  months  after  this,  without 
fault   on  his  part,  he  was   discharged,   against  his   protest,   and   had 
been  unable  to  earn  anything  like  $20  a  week  from  the  time  of  his 
discharge  to  the  filing  of  the  suit ;  that  appellees  were  running  the  store 
with  great  profit,  and  it  was  incumbent  on  them,  under  the  will,  to  keep 
him  in  their  employment  at  $20  a  week ;  that  his  wages  for  the  time 
amounted  to  $4,780,  and  he  had  only  received  $3,045.70,   leaving  a 
balance  due  him  of  $1,734.30;  that  C.  P.  Barnes  was  the  owner  of  a 
larger  interest  in  the  firm  than  his  brother,  J.  B.  Barnes,  and  by  his 
will  gave  to  his  brother  enough  of  his  holdings  in  the  firm  to  make  the 
brother  and  the  testator's  widow,  appellee,  S.  S.  Barnes,  equal  partners 
in  the  business ;   that   they   continued   the   business   under   the    same 
firm  name  from  the  death  of  the  testator,  on  February  5,  1895,  until 
May  19,  1897,  when  the  brother,  J.  B.  Barnes,  sold  out  his  interest 
in  the  firm  to  the  widow,  appellee,  S.  S.  Barnes,  and  that  she  had  con- 
tinued the  business  under  the  name  of  C.  P.  Barnes  &  Co.  It  will  be  ob- 
served that  the  brother,  J.  B.  Barnes,  is  not  stied.  The  suit  is  brought 
against  the  personal  representative  and  the  widow  as  residuary  devisee. 
It  will  be  also  observed  that,  although  appellant's  salary  was  cut  down 


Ch.    5)  ESSENTIALS    TO   CREATIOX   AND.    EXISTENCE.  43 

to  $15  soon  after  the  testator's  death,  he  continued  with  the  firm  and 
continued  to  accept  the  salary  that  was  paid  him ;  and  things  remained 
in  this  shape  until  after  J.  B.  Barnes  sold  out,  and  appellee  S.  S. 
Barnes  took  charge  of  the  business  in  her  own  right,  after  the  disso- 
lution of  that  firm,  and  appellant  continued  to  work  for  her  and  to 
accept  the  reduced  salary  from  her  until  he  was  discharged  by  her 
something  like  a  year  afterwards. 

It  is  insisted  for  appellant  with  great  earnestness  that  the  will  creates 
a  precatory  trust  in  his  favor,  and  that  he  is  entitled  under  the  will  to 
his  wages  at  $20  a  week.  The  will  does  not  fix  the  salary  that  appellant 
is  to  receive  if  retained  in  the  employ  of  the  firm,  nor  does  it  require 
that  he  shall  be  retained.  The  language  imports  no  more  than  an  ex- 
pression of  the  testator's  desire,  and  the  clause  was,  no  doubt,  put  in 
this  shape  so  as  not  to  embarrass  the  devisees  in  the  management  of 
their  aflfairs.  The  will  contemplated  that  the  brother  and  wife  of  the 
testator,  as  a  firm,  would  continue  the  business ;  and  to  this  firm  the 
testator  expressed  the  desire  that  it  would  retain  appellant  in  its 
employ  on  such  liberal  terms  as  his  long  and  faithful  service  entitled 
him  to.  The  amount  of  compensation  is  expressly  left  to  the  firm,  and 
no  desire  is  expressed  as  to  anything  that  should  be  done  after  that 
firm  went  out  of  business.  The  suit  here  is  not  against  that  firm,  and, 
if  this  action  can  be  maintained,  the  clause  in  question  will  amount,  in 
substance,  to  a  charge  of  an  annuity  upon  the  widow,  appellee,  S.  S. 
Barnes,  in  favor  of  appellant,  unless  she  quits  the  business.  The  tes- 
tator clearly  intended  no  such  result.  In  Shaw  v.  Lawless,  5  Clark  & 
F.  129,  the  testator  expressed  his  "particular  desire"  that  the  devisee, 
when  he  received  the  property,  should  continue  L.  "in  the  receipt 
and  management  thereof,  and  likewise  employ  and  retain  him  in  the 
receipt,  agency  and  management  of  the  rents,"  at  the  usual  fees  allow- 
ed to  agents  for  this  reason,  as  expressed  in  the  will :  "He  having 
acted  for  me,  since  I  became  possessed  of  said  estate,  fully  to  my 
satisfaction."  It  was  held  that  no  precatory  trust  resulted.  Among- 
other  things,  the  Lord  Chancellor  said :  "All  cases  upon  a  subject  like 
this  must  proceed  on  a  consideration  of  what  was  the  intention  of  the 
testator.  Now,  the  first  observation  that  strikes  one  with  reference 
to  that  matter  is  that  during  the  life  of  the  testaor  Lawless  was  his 
agent.  But  then  he  was  agent  only  during  tlu?  testator's  pleasure,  and 
by  the  terms  of  the  will  the  testator  desired  that  he  should  continue 


44  TRUSTS.  (Part  2 

in  the  agency.  Is  that  desh-e  to  be  considered  a  command?  If  so, 
for  what  length  of  time  is  he  to  continue.  ...  If  Lawless  is  the 
equitable  incumbrancer  to  the  amount  of  one-twentieth  part  of  the  in- 
come of  the  estate,  he  had  a  clear  interest  in  the  residue,  for  he  might 
take  one-twentieth  part  of  the  residue ;  he  might  file  a  bill  in  chancery 
in  order  to  control  the  application  of  the  residue  and  claim  to  be 
absolutely  invested  in  what  he  is  entitled  to  receive,  namely,  this 
one-twentieth  part."  So,  here,  if  the  clause  in  question  created  a 
precatory  trust,  appellant  would  have  been  entitled  to  maintain  a  bill 
in  equity  to  protect  his  rights  and  prevent  the  firm  from  taking  any 
steps  that  might  imperil  his  annuity.  Such  a  right  might  render 
the  estate  of  the  devisee  materially  less  valuable,  and  make  appellant 
to  no  small  extent,  the  real  beneficiary  under  the  will.  The  case  above 
referred  to  was  followed  in  Foster  v.  Elsley,  19  Ch.  Div.  518,  and 
Finden  v.  Stephens,  22  Eng.  Ch.  142.  See,  also,  Perry,  Trusts,  sec- 
tion 123.  The  firm  composed  of  the  widow  and  the  brother  were  not 
required  to  continue  the  business.  They  might  close  it  out  at  pleasure. 
If  they  had  sold  to  a  stranger,  clearly  no  trust  would  have  attached 
in  favor  of  appellant  to  the  assets  in  their  hands  received  from  the 
sale.  When  the  brother  sold  to  the  widow,  he  was  acquit  of  all  respon- 
sibility. It  was  not  the  testator's  purpose  to  create  a  permanent  charge 
of  the  corpus  of  the  estate  in  the  hands  of  the  devisees ;  and  the 
widow  after  her  purchase  was  under  no  obligation  to  keep  appellant 
indefinitely  in  her  service,  regardless  of  the  amount  of  business  she 
did,  or  other  circumstances  afi'ecting  her  interest.  Judgment  affirmed. 


HOEFFER  V.  CLOGAN. 

(Supreme  Court  of  Illinois,  1898,   171  III.  462,  49  N.  E.  527.) 

Cartwright,  T-  .  •  .The  devise  and  bequest  were  made  to 
the  Holy  Family  Church  in  trust  for  a  specific  purpose,  which  was,  that 
the  church  expend  the  proceeds  of  the  sale  of  the  real  estate  and 
the  amount  of  the  bequest  in  masses  for  the  repose  of  the  souls  of  the 
persons  named.  They  were  not  intended  as  gifts  to  the  church  for 
its  general  uses,  and  any  other  application  than  that  specified  in  the 
will  would  contravene  the  purpose  of  the  testator.     This  being  so,  it 


Cll.    5)  ESSENTIALS    TO   CREATION   AND.    EXISTENCE.  45 

is  claimed  that  the  trust  is  void  because  it  is  a  private  trust  with  the 
souls  of  particular  deceased  persons  as  beneficiaries,  none  of  whom  can 
come  into  court  and  call  the  trustees  to  account  or  enforce  its  execu- 
tion and  also  for  want  of  a  trustee  capable  of  taking  legal  title  to  the 
property.  On  the  other  hand,  it  is  claimed  that  the  devise  and  legacy 
are  for  a  charitable  use  within  the  meaning  and  spirit  of  the  doctrine 
on  that  subject,  and  if  this  position  is  correct,  the  rules  of  law  which 
would  invalidate  them  as  an  express  private  trust  will  not  affect  their 
validity. 

The  doctrine  of  charitable  uses  has  been  repeatedly  held  to  be  a 
part  of  the  law  of  this  State.  The  equitable  jurisdiction  over  such 
trusts  was  not  derived  from  the  statute  of  charitable  uses,  (43  Eliz., 
chap  4)  but  prior  to  and  independently  of  that  statute  charities  were 
sustained,  irrespective  of  indefiniteness  of  the  beneficiaries  or  the  lack 
of  trustees  or  the  fact  that  the  trustees  appointed  were  not  competent 
to  take.  (Heuser  v.  Harris,  42  111.  425;  Vidal  v.  Girard,  2  How.  127.) 
The  statute,  however,  became  a  part  of  the  common  law  of  this  State. 
Heuser  v.  Harris,  supra;  Hunt  v.  Fowler,  121  111.  269;  Andrews  v. 
Andrews,  110  111.  223. 

The  statute  of  charitable  uses  of  Elizabeth  has,  since  its  passage, 
been  considered  as  sliowing  the  general  spirit  and  intent  of  the  term 
"charitable,"  and  the  objects  which  come  within  such  general  spirit  and 
intendment  are  to  be  so  regarded.  The  definition  given  by  Mr.  Justice 
Gray  in  the  case  of  Jackson  v.  Phillips,  14  Allen,  56,  was  adopted  and 
approved  by  this  court  in  the  case  of  Crerar  v.  Williams,  145  111.  625. 
It  is  as  follows :  "A  charity,  in  a  legal  sense,  may  be  more  fully  de- 
fined as  a  gift,  to  be  applied,  consistently  with  existing  laws,  for  the 
benefit  of  an  indefinite  number  of  persons,  either  by  bringing  their 
hearts  under  the  influence  of  education  or  religion,  by  relieving  their 
bodies  from  disease,  suffering  or  constraint,  by  assisting  them  to  es- 
tablish themselves  for  life,  or  by  erecting  or  maintaining  public  build- 
ings or  works,  or  otherwise  lessening  the  burthens  of  government.  It 
is  immaterial  whether  the  purpose  is  called  charitable  in  the  gift  itself, 
if  it  is  so  described  as  to  show  that  it  is  charitable  in  its  nature."  Any 
trust  coming  within  this  definition  for  the  benefit  of  an  indefinite  class 
of  persons  sufficiently  designated  to  indicate  the  intention  of  the  donor, 
and  constituting  some  portion  or  class  of  the  public,  is  a  charitable 
trust.    Among  such  objects  are  the  support  and  propagation  of  religion 


46  TRUSTS.  (Part  2 

and  the  maintenance  of  religious  services,  (Andrews  v.  Andrews, 
supra,)  to  pay  the  expense  of  preaching  and  salary  of  rectors,  (Alden 

V.  St.  Peter's  Parish,  158  111.  631,)  or  the  preaching  of  an  annual 
sermon  in  memory  of  the  testator.     Duror  v.  Motteux,  1  Ves.  Sr.  320. 

The  doctrine  of  superstitious  uses  arising  from  the  statute  1  Edward 

VI,  Chap.  14,  under  which  devisees  for  procuring  masses  were  held 
to  be  void,  is  of  no  force  in  this  State  and  has  never  obtained  in  the 
United  States.  In  this  country  there  is  absolute  religious  equality,  and 
no  discrimination,  in  law,  is  made  between  different  religious  creeds  or 
forms  of  worship.  It  cannot  be  denied  that  bequests  for  the  general 
advancement  of  the  Roman  Catholic  religion,  the  support  of  its  forms 
of  worship  or  the  benefit  of  its  clergy,  are  charitable,  equally  with 
those  for  the  support  or  propagation  of  any  other  form  of  religious 
belief  or  worship.  The  nature  of  the  mass,  like  preaching,  prayer,  the 
communion,  and  other  forms  of  worship,  is  well  understood.  It  is 
intended  as  a  repetition  of  the  sacrifice  on  the  cross,  Christ  offering 
Himself  again  through  the  hands  of  the  priest  and  asking  pardon  for 
sinners  as  He  did  on  the  cross,  and  it  is  the  chief  and  central  act  of 
worship  in  the  Roman  Catholic  Church.  It  is  a  public  and  external 
form  of  worship, — a  ceremonial  which  constitutes  a  visible  action. 
It  may  be  said  for  any  special  purpose,  but  from  a  liturgical  point  of 
view  every  mass  is  practically  the  same.  The  Roman  Catholic  church 
believes  that  Christians  who  leave  this  world  without  having  sufBcient- 
ly  expiated  their  sins  are  obliged  to  suffer  a  temporary  penalty  in  the 
other,  and  among  the  special  purposes  for  which  masses  may  be  said 
is  the  remission  of  this  penalty.  A  bequest  for  such  special  purpose 
merely  adds  a  particular  remembrance  to  the  mass,  and  does  not, 
in  our  opinion,  change  the  character  of  the  religious  service  and  render 
it  a  mere  private  benefit.  While  the  testator  may  have  a  belief  that  it 
will  benefit  his  soul  or  the  souls  of  others  doing  penance  for  their 
sins,  it  is  also  a  benefit  to  all  others  who  may  attend  or  participate  in 
it.  An  act  of  public  worship  would  certainly  not  be  deprived  of  that 
character  because  it  was  also  a  special  memorial  of  some  person,  or 
because  special  prayers  should  be  included  in  the  services  for  particular 
persons.  Memorial  services  are  often  held  in  churches,  but  they  are 
not  less  public  acts  of  worship  because  of  their  memorial  character, 
and  in  Duror  v.  Motteux,  supra,  the  trust  for  the  preaching  of  an 
annual  sermon  in  memory  of  the  testator  was  held  to  be  a  charitable 


Ch.    5)  ESSENTIALS    TO   CREATION   AND.    EXISTENCE. 


47 


use.  The  mere  fact  that  the  bequest  was  given  with  the  intention  of 
obtaining  some  benefit  or  from  some  personal  motive  does  not  rob 
it  of  its  character  as  charitable.  The  masses  said  in  the  Holy  Family 
Church  were  public,  and  the  presumption  would  be  that  the  public 
would  be  admitted,  the  same  as  at  any  other  act  of  worship  of  any 
other  christian  sect.  The  bequest  is  not  only  for  an  act  of  religious 
worship,  but  it  is  an  aid  to  the  support  of  the  clergy.  Although  the 
money  paid  is  not  regarded  as  a  purchase  of  the  mass,  yet  it  is  re- 
tained by  the  clerg)-,  and,  of  course,  aids  in  the  maintenance  of  the 
priesthood. 

In  the  case  of  Schoiiler,  Petitioner,  134  Mass.  426.  it  was  held  that 
a  bequest  of  money  for  masses  was  a  good  charitable  bequest  of  the 
testatrix,  and  the  court  said:   "Masses  are   religious  ceremonials  or 
observances  of  the  church  of   which  she  was  a  member,  and  come 
within  the  religious  or  pious  uses  which  are  upheld  as  public  charities." 
So  in  Pennsylvania,  it  has  been  held  that  a  bequest  to  be  expended  in 
masses   for  the  repose  of   souls  is  a  religious  or   charitable  bequest 
under   the    statute.      (Rhynier's    Appeal,    93    Pa.    St.    142;    Selbert's 
Appeal,  18  W.  N.  Cas.  276.)  A  recent  case  decided  in  the  Irish  courts, 
January  24,  1897,  is  Attorney  General  v.  Hall.    It  was  held  unanimous- 
ly, both  in  the  Exchequer  and  the  Court  of  Appeals,  that  a  bequest 
for  saying  masses  for  the  soul  of  a  deceased  person  was  a  good  chari- 
table bequest. 

In  New  York  and  Wisconsin  it  has  been  held  that  a  trust  of  this 
character  is  void  for  the  want  of  a  definite  beneficiary  to  enforce  its 
execution.     (Holland  v.  Alcock,  108  N.  Y.,  312;  McHugh  v.  McCole, 
(Wis.)  decided  October  27,  1897.    But  the  decisions  in  those  States  are 
readily  distinguishable   from   the  rule   in  this   State.      In    New  York 
charitable  uses  were  abolished  by  legislation,  and  in  all  valid  trusts 
there  must  be  a  definite  and  certain  beneficiary  to  take  the  equitable 
title,  unless  the  act  of  1893,  which  is  said  to  have  resulted  from  the 
decision  in  Tilden  v.  Green,  130  N.  Y.  29,  has  enlarged  or  relaxed 
the  rule  as  to  a  definite  beneficiary.    In  Wisconsin  all  trusts  are  abolish- 
ed by  statute,  except  certain  specific  trusts  where  there  is  certainty  in 
the  beneficiaries,  and  in  that  State  bequests  have  been  held  to  be  void 
which  have  been  uniformly  sustained  in  this  court  as  for  charitable  pur- 
poses. The  decision  in  McHugh  v.  McCole,  suf^ra,  was  upon  the  ground 
that  the  doctrine  of  charitable  uses  was  not  in  force  in  that  State,  and 


48  TEUSTS.  (Part  2 

that  a  trust  to  be  sustained,  must  be  of  a  clear  and  definite  nature,  and 
the  beneficiary  interest  to  every  person  therein  must  be  fully  expressed 
and  clearly  defined  upon  the  face  of  the  instrument.  The  will  in  that 
case  gave  a  certain  sum  of  money  to  the  Roman  Catholic  bishop  of  the 
diocese  of  Green  Bay,  Wisconsin,  to  be  used  and  applied  in  specified 
amounts  for  masses  for  the  repose  of  testator's  soul  and  the  souls 
of  certain  named  persons.  It  was  held  invalid  solely  on  the  ground 
that  the  provision  amounted  to  a  trust  which,  under  the  statutes  of 
that  State,  was  invalid.  It  was  said  that  if  the  testator  had  made 
a  direct  bequest  of  the  sum  in  question  to  Bishop  Messmer,  or  to  any 
bishop  or  priest,  for  masses  for  the  repose  of  the  souls  of  persons 
named  in  his  will  it  would  be  valid,  and  the  court  said:  "We  know 
of  no  legal  reason  why  any  person  of  the  Catholic  faith  believing 
in  the  efficacy  of  masses  may  not  make  a  direct  gift  or  bequest  to 
any  bishop  or  priest  of  any  sum  out  of  his  property  or  estate  for 
masses  for  the  repose  of  his  soul  or  the  souls  of  others,  as  he  may 
choose."  The  court  expressed  regret  that  the  intention  of  the  tes- 
tator could  not  be  given  effect  because  he  had  put  it  in  the  form  of  a 
trust  provision.  So,  also,  in  New  York  it  has  been  held  in  several 
cases  that  a  bequest  to  a  named  priest  for  the  saying  of  masses  for 
the  repose  of  the  souls  of  specified  persons  is  valid.  Ruppel  v.  Schlegel, 
7  N.  Y.  Sup.  936;  In  re  Howard's  Estate,  25  id.  1111 ;  Vanderveer  v. 
McKane,  25  Abbott's  N.  C.  105. 

The  case  of  Festorazzi  v.  St.  Joseph's  Catholic  Church,  104  Ala. 
327,  holds  that  a  bequest  to  that  church  in  the  city  of  Mobile,  to  be 
used  in  solemn  mass  for  the  repose  of  the  testator's  soul,  could  not 
be  supported  as  a  charitable  bequest.  The  decision  seems  to  be  on 
the  ground  that  the  testator's  own  soul  was  the  exclusive  object  and 
beneficiary  of  the  trust,  and  that  no  public  benefit  was  to  be  derived 
from  it  and  no  living  person  was  able  to  call  the  trustee  to  account. 
We  are  not  able  to  agree  with  the  conclusion  that  there  is  no  benefit 
to  the  church  or  public  in  such  case,  and,  as  we  have  seen,  the  cere- 
monial of  the  mass  is  a  public  action  which  can  be  seen  and  taken 
cognizance  of,  so  that  there  is  no  more  difficulty  in  procuring  a  mass 
to  be  said  than  there  is  in  securing  the  public  delivery  of  a  sermon 
or  a  lecture.  A  bequest  for  the  erection  of  a  public  statute  or  monu- 
ment to  a  distinguished  person  is  a  good  charitable  bequest,  and  yet 
such  person,  if  deceased,  could  not  enforce  its  execution,  but  the 
courts  could  and  would  do  it. 


Cll.    5)  ESSENTIALS    TO   CREATION    AND,    EXISTENCE,  49 

We  think  the  devise  and  legacy  charitable,  and  a  rule  applicable 
to  trusts  is  that  they  will  not  be  allowed  to  fail  for  want  of  a  com- 
petent trustee.  The  court  will  appoint  a  trustee  or  trustees  to  take 
the  gifts  and  apply  them  to  the  purposes  of  the  trust.  Heuser  v. 
Harris,  supra. 

The  decree  of  the  circuit  court  is  reversed  and  the  cause  is  remanded, 
with  directions  to  proceed  in  conformity  with  the  views  herein  express- 
ed. 

Reversed  and  remanded. 


BARKLEY  v.  DONNELLY. 

(Supreme  Court  of  Missouri,   1892,   112   Mo.   561,   19   S.   W.   305.) 

Thomas,  J.  This  is  a  suit  in  equity  by  the  heirs  of  Mary  A.  Troost 
to  recover  the  beneficial  interest  in  certain  property  in  Kansas  City, 
attempted  to  be  donated  by  the  will  of  Mrs.  Troost  to  certain  religious 
and  charitable  objects,  and  asking  a  construction  of  the  will  for  this 
purpose.     .     ,     . 

The  petition  sets  out  the  will  iii  hacc  verba,  which  after  devising 
considerable  property  to  the  plaintiffs,  and  making  a  few  other  special 
bequests,  contains  the  following:     .     .     . 

"Item  18.  I  'give  and  devise  to  the  City  of  Kansas  the  parcel  of 
land  .  .  .  containing  from  five  to  ten  acres  .  .  .  called  the 
'Fry  Place,'  to  hold  the  same  in  trust,  however,. for  the  following  uses 
and  none  other :  for  a  home  and  place  for  the  maintenance  and  educa- 
tion of  poor  children,  and  the  same  shall  be  called  the  'Gillis  Orphan 
Asylum.'  .  .  ." 
Another  contention  of  plaintiffs  is  that  the  trusts  upon  which  the 
Fry  Place,  and  the  lots  upon  which  the  Gillis  opera  house  has  been 
built  were  devised,  cannot  be  carried  out  for  two  reasons:  First, 
because  the  beneficiaries  thereof  are  so  indefinite  and  uncertain  that 
they  cannot  be  ascertained,  there  being  no  power  in  the  City  of  Kansas 
or  the  trustees  named  "to  determine  who  are  'poor  children,'  or  to, 
select  from  the  innumerable  multitude  upon  the  earth  those  that  shall 
partake  of  the  testatrix's  'bounty'  ". 

2  Eq.— 4 


50  TRUSTS.  (Part  2 

This  proposition  cannot  be  maintained.  The  bequest  is  for  a  char- 
ity and  for  charitable  uses.  The  beneficiaries  then  are  "poor  children'" 
who  are  objects  of  charity,  and  such  "poor  children"  are  and  have 
always  been  a  well-recognized  and  a  well-defined  class. 

But  it  is  urged  that  the  bounty  must  wholly  fail,  because  the  char- 
ity of  this  lady  extended  to  an  "innumerable  multitude,"  and  was  as 
broad  as  the  earth.     We  cannot  yield  assent  to  this  doctrine.     When 
the  asylum  is  built,  and  is  filled  to  its  capacity  with  poor  children,  it 
would  be  inhuman  to  turn  those   out   who   are   under  its  protecting 
care,  because  it  could  not  receive  all  who  might  apply,  and  who  might 
be  found  to  be  worthy.     The  charitable  institutions  of  earth  will  not 
be  closed,  ought  not  to  be  closed,  simply  because  they  have  not  the 
means  or  capacity  to  relieve  all  the  suffering  that  flesh  is  heir  to.    The 
poor  we  have  always  with  us,  and  our  first  and  most  sacred  duty  is 
to  care   for  those  who  are  unable     to     care      for     themselves,  and 
courts  of  equity  have  always  been  liberal  in  the  construction  of  wills 
devising  property  for  charitable  uses. 

Among  others,  the  following  devises  have  been  upheld:  "To  fur- 
nish relief  to  all  poor  emigrants  and  travelers  coming  to  St.  Louis  on 
their  way  bona  fide  to  settle  in  the  west"   (Chambers  v.  City  of   St. 
Louis,  29  Mo.  543)  ;  "for  the  worship  and  service  of  God"  (Attorney 
General   v.    Pearson,   3   Meriv.   352)  ;   "for   objects   and   purposes   of 
charity,  public  and  private"   (Saltonstall  v.   Sanders,   11   Allen,  446); 
"for  the  benefit  of  the  Christian  religion,  to  be  applied  in  such  manner 
as,  in  the  judgment  of  the  executor  would  best  promote  the  object 
named"  (Miller  v.  Teachout,  24  O.  St.  525)  ;  "Such  charitable  institu- 
tions of  the  city  of  St.  Louis,  Missouri,  as  the  executor  might  deem 
worthy"  (Howe  v.  Wilson,  91  Mo.  45)  ;  for  "such  charitable  purposes" 
as  the  trustee  might  deem  best  (Powell  v.  Hatch,  100  Mo.  592)  ;  for 
the  suffering  poor  of  the  town  of   Auburn"    (Howard  v.   American 
Peace  Society,  49   Me.  288)  ;  and   for  "a  church  school   for  boys" 
(Halsey  v.  Convention,  23  Ati.  Rep.  (Md.)  781.)     .     .     . 


QUIMBY  v.  OUIMBY. 

(Illinois  Appeal  Court,  1912,  175  111.   App.  367.) 

McSuRELY,  J.     Jane  E.  Reynolds  by  her  will  dated  September  4, 
1889,  devised  and  bequethed  her  entire  estate  to  Benjamin  F.  Quimby, 


Cll.    5)  ESSENTIALS    TO    CREATION    ANP.    EXISTENCE.  51 

upon  certain  trusts  therein  mentioned,  "giving  to  him  as  such  trustee 
such  power  and  authority  over  the  property  ...  as  may  be  neces- 
sary to  carry  my  intentions  into  effect  in  the  execution  of  my  will." 

The  controversy  before  us  arises  over  the  bequest  of  the  remainder 
of  her  estate,  which  is  as  follows: 

"I  further  direct  my  said  executor  to  give  and  convey  all  the  re- 
mainder of  my  estate,  goods  and  chattels  ro  my  beloved  grandson 
Walter  Reynolds  Ouimby,  whenever  he  may  appear  and  make  claim 
to  or  for  the  same.  If,  however,  at  the  expiration  of  hve  years 
from  the  date  of  my  said  decease,  my  said  grandson  does  not  so  appear  • 
and  at  the  end  of  such  period  of  five  years  it  is  not  known  that  my 
said  grandson  is  living,  I  hereby  direct  that  all  that  may  remain  of 
the  money  and  amounts  due  me  which  may  be  collected  by  my  said 
executor  or  trustee,  with  the  accumulated  interest,  shall  be  paid  to 
the  Chicago  Waif's  Mission  and  Training  School." 

The  grandson,  \\'alter  Ouimby.  never  appeared.  He  had  disappear- 
ed in  1880,  some  nine  years  prior  to  the  making  of  the  will,  and  was 
never  found.  It  is  alleged  in  the  answer  filed  by  the  heirs  claiming 
the  fund  that  he  is  dead  that  he  died  befo'-e  the  death  of  Jane  E. 
Reynolds,  and  the  decree  entered  by  the  chancellor  so  finds. 

The  Chicago  Waif's  Mission  and  Training  School  was  a  voluntary 
association  conducting  a  Sunday  School  for  neglected  children  in  the 
city  of  Chicago,  and  afterwards  in  addition  to  religious  services  began 
looking  after  the  temporal  welfare  of  dependent  boys.  It  was  or- 
ganized as  a  corporation  not  for  profit  on  January  22,  1889,  the  objects, 
as  stated  in  its  articles  of  incorporation,  being  "to  provide  suitable 
homes  for  the  homeless  and  the  dependent  and  needy  boys  and  girls 
in  the  State  of  Illinois,  wherein  they  may  be  properly  cared  for  while 
they  are  being  educated  and  taught  some  useful  trade  or  occupation, 
and  aid  them  in  various  other  ways." 

Mrs.  Reynolds,  the  testatrix,  having  died  on  November  17,  1894, 
the  five  years  within  which  her  grandson  Walter  Ouimby,  could  claim 
the  bequest  to  him  expired  on  November  17,  1899.  At  that  time  the 
Chicago  Waif's  Mission  and  Training  School  had  wholly  ceased  to  carry 
on  the  work  for  which  it  was  organized,  or  any  other  work,  having 
about  a  year  prior  to  that  time  turned  over  to  the  Illinois  Industrial 
Training  School  for  Boys,  at"  Glenwood,  Illinois,  all  of  its  property 
and  boys.     The  Illinois   Industrial   Training  School   for   Boys  after- 


52  TRUSTS.  (Part  2 

wards  changed  its  name  to  the  Illinois  Manual  Training  School  Farm, 
and  is  the  appellant  here.  On  July  1,  1902,  an  order  of  cancellation  of 
the  charter  of  the  Chicago  Waif's  Mission  and  Training  School  was 
entered  in  the  office  of  the  Secretary  of  State,  and  it  has  never  been 
reinstated. 

Benjamin  F.  Quimby,  the  trustee  named  in  the  will,  having  died   ■ 
July  17,  1897,  the  Title  Guaranty  &  Trust  Company  was  appointed 
trustee  to  succeed  him  on  May  4,  1898.  The  Chicago  Title  &  Trust 
Company   (which  by  consolidation  has  succeeded  the  Title  Guaranty 
&  Trust  Company  as  trustee)  on  November  4,  1908,  filed  its  petition 
in  the  chancery  court  representing  that  distribution  could  not  be  made 
to  the  Chicago  Waif's  Mission  and  Training  School  as  it  had  ceased 
to  carry  on  the  charitable  work  for  which  it  was  organized,  and  set  up 
the  claim  of  the  heirs  and  of  others  and  asked  for  an  order  of  court 
in  the  premises.     The  bill  made  as  parties   defendant   the   heirs   of 
Walter  Reynolds  Quimby  and  "unknown  owners."  To  this  bill  certain 
collateral  heirs  at  law  of  the  testatrix  filed  their  answer,  as  did  the 
Attorney  General,  who  was  made  a  defendant.     The  Illinois  Manual 
Training  School  Farm  filed  its  answer  as  one  of  the  unknown  owners 
made  parties  defendant  to  the  petition,  and  claimed  the  fund  under 
the  equitable  doctrine  of  cy  pres,  by  reason  of  the  similarity  of  the 
work  carried  on  by  it  to  that  carried  on  by  the  Chicago  Waif's  Mission 
and  Training  School.     This  training  school  farm  is  a  corporation  not 
for  pecuniary  benefit.     Its  object  is  stated  in  its  articles  of  incorpora- 
tion thus :     "To  provide  a  home  and  proper  training  school  for  desti- 
tute and  dependent  boys  who  may  be  committed  to  its  charge."  Upon 
hearing,  a  decree  was  entered  by  the  chancellor  finding  the  facts  as 
above  set  forth,  and  also  determining  the  heirs  at  law  and  next  of  kin 
of  Jane  Reynolds,  and  further  that  inasmuch  as  the  Chicago  Waif's 
Mission  and  Training  School  ceased  to  carry  on  the  charitable  work 
for  which  it  was  organized  on  July  14,  1898,  "and  has  not  since  said 
last  mentioned  date  done  or  performed  any  of  the  work  for  which  it 
was  organized,   and   has   discontinued  the   exercise   of    its   corporate 
functions  and  abandoned  its  corporate  franchises,  it  is  not  now  entitled 
to  said  trust  estate  or  any  part  thereof."     The  decree  further  found 
"that  there  is  nothing  in  said  will  of  Jane  E.  Reynolds,  deceased  show- 
ing a  general  charitable  intention,  and  'showing  that  the  said  testatrix 
intended  to  devote  said  trust  estate  to  charitable  purposes  in  the  event 


Ch.    5)  ESSENTIALS    TO   CEEATIOX   AND,    EXISTENCE.  53 

that  the  gift  over  to  the  Chicago  Waif's  Mission  and  Training  School 
failed,  and  that  therefore  the  said  trust  estate  ought  not  to  be  applied 
cy  prcs  by  the  court  to  other  charitable  purposes."  From  this  decree 
the  Illinois  Manual  Training  School  Farm,  hereinafter  called  ap- 
pellant, has  appealed  to  this  court. 

Counsel  for  appellant  correctly  say  that :  "The  sole  question  pre- 
sented is :  Does  the  record  mgike  out  a  case  for  the  application  of 
the  cy  prcs  doctrine?  "The  usual  definition  of  the  equitable  rule  of 
cy  pres  has  been  stated  thus :  "When  a  definite  function  or  duty 
is  to  be  performed,  and  it  cannot  be  done  in  exact  conformity  with 
the  scheme  of  the  person  or  persons  who  have  provided  for  it,  the 
duty  may  be  performed  with  as  close  approximation  to  that  scheme 
as  reasonably  practicable."  12  Cyc.  1191.  And  in  White  v.  Fisk, 
22  Conn.  30,  the  cy  prcs  doctrine  is  thus  described:  "It  seems  to  be 
this,  that  if  it  can  be  seen  that  a  charity  was  intended,  by  a  testator, 
but  the  object  specified  cannot  be  accomplished,  the  funds  may  be 
applied  to  other  charitable  purposes,  or  that  the  chancellor  may 
seize  them  as  a  sort  of  waif,  and  apply  them  as  his,  or  the  king's 
good  conscience,  shall  direct.  ...  In  this  way  the  chancellor  sub- 
stitutes himself  in  the  donor's  place,  and  really  makes  the  will  him- 
self." If  this  broad  statement  of  the  rule  comprehended  all  the  ele- 
ments involved,  the  application  of  it  would  be  comparatively  free  from 
difficulty.  Courts  would  determine  only  whether  the  organization  nam- 
ed by  will  as  the  beneficiary  was  capable  of  taking,  and  if  it  were  in- 
capable what  other  organization  nearest  approached  it  in  its  purposes 
and  work.  In  undertaking  to  carry  out  the  intentions  of  persons  mak- 
ing charitable  bequests,  courts  early  were  met  with  the  question  of 
whether  or  not  the  testator  had  intended  to  aid  a  general  class  needing 
charitable  assistance,  or  only  the  particular  and  specific  organization 
named  in  the  will.  Almost  without  exception,  therefore,  the  cases  in 
which  the  application  of  the  rule  of  cy  prcs  is  sought  turn  upon  the 
conclusion  of  this  court  as  to  whether  or  not  the  will  evidenced  a 
general  charitable  intent.  This  is  the  controlling  inquiry  before  us. 
From  an  inspection  of  the  clause  of  the  will  under  consideration  it  is 
seen  that  the  testatrix  used  no  special  words  indicating  an  intention 
to  benefit  needy  boys  and  girls  generally ;  so  that  the  critical  question 
arises,  can  a  general  charitable  intent  to  benefit  a  particular  class  of 
dependents  be  deduced  from  the  sole  fact  that  the  organization  named 


54  TRUSTS.  (Part  2 

in  the  will  was  engaged  in  charitable  work  for  that  particular  class  of 
dependents?  Or  applying  the  question  to  the  facts  before  us,  can  a 
general  charitable  intent  to  benefit  needy  boys  and  girls  generally,  be 
deduced  from  the  sole  fact  that  the  Chicago  Waif's  Mission  and 
Training  School  was  engaged  in  charitable  work  for  needy  boys  and 
girls?  Many  cases  have  been  cited  by  counsel  for  both  parties  but 
none  exactly  in  point  as  touching  this  particular  question. 

The  general  rule  stated  in  Pomeroy's  Equity  Jurisprudence,  vol.  3, 
page    1964,   is:      "A   limitation   upon   the   generality   of    the   doctrine 
seems  to  be  settled  by  the  recent  decisions,  tliat  where  the  donor  has 
not  expressed  his  charitable  intention  generally,  but  only  by  providing 
for  one  specific  particular  object,  and  this  object  cannot  be  carried  out, 
or  the  charity  provided  for  ceases  to  exist  before  the  gift  takes  effect, 
then  the  court  will  not  execute  the  trust ;  it  wholly  fails."     And  in 
Underbill  on  Wills,  vol.  2,  page   1230,  the  statement  is  made:     "If, 
however,  the  testator  has  not  used  language   from  which  a  general 
charitable  intent  may  be  implied,  or  if  he  has  pointed  out  some  par- 
ticular institution  or  mode  of  application  by  which  the  charity  is  to 
be  carried  out,  the  court  will  not  decree  an  execution  cy  prcs,  when,  for 
any  reason,  the  carrying  into  efifect  of  the  particular  charitable  intent 
of   the   testator  becomes   impracticable."      It   would   serve   no   useful 
purpose  to  cite  the  many  cases  in  which  is  discussed  this  limitation  upon 
the  general  rule  of  c\  prcs,  but  from  a  study  of  these  cases  it  will  be 
seen  that  the  test  seems  to  be  this,  that  if  the  bequest  is  to  a  cause  or 
for  a  purpose  or  to  aid  and  further  a  plan  or  scheme  of  public  benefit, 
there  is  evidence  of  a  general  charitable  intent.     This  is  illustrated  in 
Richardson  v.  Mullery,  200  Mass.  247,  a  case  which  appellant's  coun- 
sel urge  as  sustaining  their  contention.     In  this  case  the  gift  was  "to 
the  life-saving  station  to  be  built  and  established,"  and  it  was  held  not 
to  be  a  gift  to  any  specific  organization,  but  to  whichever  life-saving 
station  might  be  engaged  in  the  usual  work  of  such  a  station  in  that 
locality.     A  similar  case  in  Mason  v.  Bloomington  Library  Ass'n,  237 
111.  442,  where  the  bequest  was  to  "an  art  studio  or  art  gallery  and 
studio,  meaning  thereby  a  suitable  place  wherein  works  of   art  will 
be  collected,  kept,  preserved  or  exhibited  for  the  advancement  of  edu- 
cation in  art."     x\pplying  this  test  to  the  clause  of  the  will  before  us, 
it  will  be  seen  at  once  that  the  gift  is  not  to  any  cause,  plan  or  scheme 
of  charity,  but  to  a  specific  and  particular  organization.    We  therefore 


Cll.    5)  ESSENTIALS    TO   CREATION   AND.    EXISTENCE.  55 

must  hold  that  the  better  resasoning  favors  the  conckisioii  that  no 
general  charitable  intent  was  indicated  by  the  testatrix  in  her  will.  To 
hold  otherwise  would  so  extend  the  application  of  the  rule  of  ex  prcs 
as  to  compel  courts  to  administer  charitable  bequests  in  ever,-  case 
where  the  particular  object  named  in  tlie  will  is  capable  of  taking, 
unless  apt  words  negativing  such  a  course  should  be  used  in  the 
will.  The  true  rule  is  that  the  court  will  nor  act  for  the  testator  in 
this  regard  unless  some  words  are  used  in  the  will  showing  an  intention 
which  only  the  chancery  court  can  carry  out. 

Counsel  for  appellant  urge  that  the  gift  to  the  Chicago  Waif's 
Mission  and  Training  School  being  for  a  charitable  purpose,  therefore 
the  gift  was  a  charitable  gift  or  a  gift  to  charity.  This  may  be  true  in  a 
certain  sense,  but  it  does  not  follow  from  this  fact  alone  that  it  was 
a  gift  to  charity  generally. 

We  have  reached  the  foregoing  conclusion  not  forgetting  that  gifts 
to  charity  are  especially  favored  in  law,  and  that  courts  should  be 
"keen-sighted"  to  discover  an  intention  to  make  a  gift  to  charity. 

For  the  reasons  above  indicated  the  decree  of  the  chancellor  will  be 
affirmed. 

Affirmed, 


MASON  V.  BLOOMINGTON  LIBRARY  ASSOCIATION. 

(Supreme  Court  of  Illinois,  1909,  2:57   111.  442,  8G  N.  E.  1044.) 

Hand,  J.  It  is  first  contended  that  the  first  paragraph  of  the 
will  creates  a  perpetuity  and  is  void,  and  that  the  court  erred  in  ap- 
pointing a  trustee  and  in  directing  that  the  iunount  remaining  of  the 
$500  mentioned  in  that  paragraph,  after  the  purchase  of  a  monument, 
.'jhould  be  turned  over  to  a  trustee  to  be  kept  at  interest,  the  interest 
to  be  expended  in  the  care  of  the  family  burial  lot  where  the  testatrix 
should  be  buried. 

The  law  is  well  settled  in  this  country  that  a  perpetual  trust  cannot 
be  created  to  take  care  of  a  private  burial  lot  unless  the  creation  of 
.s-uch  trust  is  authorized  by  .stattite.  (6  Cyc.  918;  5  Am.  &  Ivng.  iMicy. 
of  Law,— 2nd  ed.— 933 ;  Bates  v.  Bates,  134  Ma.ss.  110;  Coil  v.  Corn- 
stock,  51   Conn.  352;  50  Am.  Rc]).  29;  jolinson  v.   iiclilicld.  79  .\];i. 


56     '  TEUSTS.  (Part  2 

423;  58  Am.  Rep.  596;  Hopkins  v.  Grimshaw,  165  U.  S.  342.)    In 
this  State  the  legislature  has  provided   (Kurd's  Stat.   1905,  p.  223,) 
that  trusts  may  be  created  for  such  purposes  in  the  hands  of  the  board 
of  directors  provided  for  by  "An  act  to  provide  for  the  proper  care  and 
management  of  county  cemetery  grounds,"  but  there  is  no  statute  in  this 
State  which  provides  for  the  creation  of  such  a  fund  in  the  hands  of  a 
private  trustee.     A  trust  created  under  a  statute  authorizing  a  trust 
to  be  created  in  perpetuity  for  the  purpose  of  caring  for  and  keeping 
in  repair  a  cemetery,  burial  lot  or  monument  is  characterized  by  the 
court  in  Morse  v.  Inhabitants  of   Natick,   176  Mass.  510,    (57  N.  E. 
Rep.  996)   as  a  statutory  trust  in  contradiction  to  a  charitable  trust. 
The  cases  of  Green  v.  Hogan,  153  Mass.  462,  and  Jones  v.  Haber- 
sham, 107  U.  S.  174,  are  not,  therefore,  in  point.     In  Bates  v.  Bates, 
supra,  the  court  said  an  examination  of  the  authorities    (and  many 
.    cases  are  cited)    "will  show  that  it  has  been  repeatedly  held  that  a 
bequest  to  provide  a  fund  for  the  permanent  care  of  a  private  tomb 
or  burial  place  could  not  be  treated  as  a  public  charity  and  thus  made 
perpetual,  and  that  such  bequest  would  be  void."     It  was  also  pointed 
out  in  that  case  that  there  was  in  force  in  that  State  a  statute  similar 
to  the  statute  in  this  state  hereinbefore  referred  to,  but  it  was  said 
"these  statutory  provisions  have  here  no  application."  And  in  Coit  v. 
Comstock,  sHpra,  it  was  said :    "It  has  been  held  in  numerous  decisions 
that  bequests  for  the  purpose  of  keeping  burial  lots  or  cemeteries  in 
good  order  or  repair  are  not  given  in  charity,  and  therefore  are  not 
protected  by  the   Statute  of   Charitable  Uses."     And  in  Johnson   v. 
Holifield,  supra,  it  was  said:  "It  seems  to  be  well  settled  by  the  course 
of  decisions  that  a  bequest  of  money,  the  interest  thereon  to  be  per- 
petually applied  to  preserving  and  keeping  in  repair  the  graves  and 
monuments  of  testatrix  and  other  named  persons,  is  repugnant  to  the 
rule  against  perpetuities,  and  void." 

We  would  be  glad  to  hold,  were  it  possible  so  to  do,  the  trust  at- 
tempted to  be  created  by  the  testatrix  by  the  first  paragraph  of  her  will 
valid.  We  are,  however,  forced  by  the  current  and  great  weight  of 
authority  to  hold  that  a  trust  like  the  one  in  question  is  not  a  gift  to 
any  public  use  and  that  its  purpose  is  purely  private  and  secular.  Our 
conclusion  is,  therefore,  that  the  trust  attempted  to  be  created  by  the 
first  paragraph  of  the  will  is  void,  and  that  the  portion  of  the  $500 
mentioned   in   that   paragraph,    remaining   after   the   purchase   of   the 


Ch.    5)  ESSENTIALS    TO   CEEATIOX    AXP.    EXISTENCE.  57 

monument,  should  be  treated  as  a  part  of  the  residuary  estate  of  the 
testatrix  and  disposed  of  under  paragraph  9  of  said  will. 


CHAMBERLAIN  v.  STEARNS. 

(Supreme  Court  of  Massachusetts,   1873,  111  Mass.  267.) 

Gray,  J.  The  question  presented  by  this  case  is,  whether  a  devise 
in  trust,  to  be  applied  "solely  for  benevolent  purposes"  in  the  discretion 
of  the  trustees,  creates  a  public  charity.  And  we  are  all  of  opinion  that 
it  does  not. 

The  word  "benevolent,"  of  itself,  without  anything  in  the  context 
to  qualify  or  restrict  its  ordinary  meaning,  clearly  includes  not  only 
purposes  which  are  deemed  charitable  by  a  court  of  equity;  but  also 
any  acts  dictated  by  kindness,  good  will  or  a  disposition  to  do  good, 
the  objects  of  which  have  no  relation  to  the  promotion  of  education, 
learning  or  religion,  the  relief  of  the  needy,  the  sick  or  the  afiflicted, 
the  support  of  public  works,  or  the  relief  of  public  burdens,  and  can- 
not be  deemed  charitable  in  the  technical  and  legal  sense. 

The  only  difference  of  opinion  in  the  adjudged  cases  on  this  subject 

has  been  upon  the  question  how   far  the  word  "benevolent,"   when 

used  to  describe  the  purposes  of  a  trust,  could  be  deemed  to  be  limited 

in   its   meaning  by  being  associated   with   other   words   more   clearly 

pointing  to  a  strictly  charitable  disposition  of  the  fund.     In  one  case 

in  the  English  chancery,  and  another  in  New  Jersey,  it  has  been  held 

that  even  a  bequest  to  trustees  to  be  applied  in  their  discretion  for 

"benevolent,  charitable  and   religious  purposes,"   was  too      uncertain 

to  be  supported.     Williams  v.  Kershaw,  5  Law  J.    (N.  S.)   Ch.  84; 

S.  C.  5  CI.  &  F.  Ill;  Norris  v.  Thomson,  4  C.  E.  Green,  307,  and 

5  C.  E.  Green,  489.    On  the  other  hand,  it  has  been  held  by  this  court 

and  by  the  House  of  Lords,  that   "benevolent,"   when  coupled  with 

"charitable"  or  any  equivalent  word,  or  used  in   such  connection,  or 

applied  to  such  public  institutions  or  corporations,  as  to  manifest  an 

intent  to  make  it   synonymous   with   "charitable,"   might   have   effect 

according  to  that  intent.     Saltonstall  v.  Sanders,  1 1  Allen,  446 ;  Rotch 

V.  Emerson,  105  Mass.  431,  434;  Hill  v.  Burns,  2  Wils.  &  Shaw,  80; 

Crichton  v.  Grierson,  3  Bligh  N.  R.  424;  S.  C.  3  Wils.  cS:  Shaw,  329, 


58  TRUSTS.  (Part  2 

341 ;  Ewen  v.  Bannernian,  2  Dow  &  CI.  74,  101 ;  S.  C.  4  Wils.  &  Shaw, 
346,  359;  Miller  v.  Rowan,  5  CI.  &  F.  99;  S.  C.  vShaw  &  Macl.  866. 

In  the  case  before  us,  the  devise  contains  no  qualifying  or  explana- 
tory words,  and  falls  precisely  within  the  case  of  James  v.  Allen,  3 
Meriv.  17,  and  the  reasons  there  given.  A  bequest  to  executors,  "in 
trust  to  be  by  them  applied  and  disposed  of  for  and  to  such  benevolent 
purposes  as  they  in  their  integrity  and  discretion,  may  unanimously 
agree  on,"  was  there  held  to  be  void  for  uncertainty,  and  distributable 
among  the  next  of  kin  ;  and  Sir  William  Grant  said :  "Although  many 
charitable  institutions  are  very  properly  called  'benevolent,'  it  is  im- 
possible to  say  that  every  object  of  a  man's  benevolence  is  also  an  object 
of  his  charity."  "What  authority  would  this  court  have  to  say  that 
the  property  must  not  be  applied  to  purposes  however  so  benevolent^ 
unless  they  also  come  within  the  technical  denomination  of  charitable 
purposes?  If  it  might,  consistently  with  the  v/ill,  be  applied  to  other 
than  strictly  charitable  purposes,  the  trust  is  too  indefinite  for  the 
court  to  execute."  That  decision  has  never  been  doubted,  and  is 
strongly  supported  by  the  arguments  of  Sir  Samuel  Romilly  and  the 
judgments  of  Sir  William  Grant  and  Lord  Eldon  in  Morice  v.  Bishop 
of  Durham.  9  Ves.  399,  and  10  Ves.  521,  and  by  the  opinion  of  Lord 
Brougham  in  Attorney  General  v.  Haberdashers'  Co.  1  Myl  &  K.  420, 
428,  and  Lord  Langdale  in  Nash  v.  Morley,  5  Beav.  177,  183. 

As  the  duration  of  the  trust  now  in  question  is  unlimited,  and  the 
trust  property  might,  in  full  accordance  with  the  terms  of  the  devise, 
be  wholly  applied  by  the  trustees  in  their  discretion  to  uses  and  pur- 
poses which  are  not  regarded  by  the  law  as  charitable,  the  trust  is 
wholly  void,  and  the  property  must  go  to  the  heir  at  law  and  residuary 
devisee. 

Decreed  accordingly. 


LORENZ  V.  WELLER. 

(Supreme  Court  of  Illinois,  1915,  267  111.  230,  108  N.  E.  306.) 

CoOKE,  J.  .  .  .  In  support  of  her  contention  that  the  court 
erred  in  refusing  to  remove  the  trustees,  appellant  urges  that  they 
are  improper  persons  to  serve  in  this  capacity,   for  the   reason  that 


Cll.    5)  ESSENTIALS    TO   CREATION    ANP,    EXISTENCE.  59 

Herman  Weller  and  Mary  Kiick.  the  wife  of  Jacob  E.  Kiick,  are  con- 
tingent remainder-men,  and  she  relies  upon  Yates  v.  Yates,  255  111. 
66,  and  similar  cases,  which  hold  that  contingent  remainder-men  should 
not  ordinarily  be  appointed  as  trustees  of  the  lands  in  which  such  re- 
mainder exists,  and  that  where  such  appointment  is  made  and  it  is 
opposed  by  the  ccstiiis  que  tntstcnt  who  are  life  tenants,  they  should 
be  removed  by  a  court  of  equity  upon  proper  proceedings  being  in- 
stituted.   In  the  Yates  case  the  trustee,  who  was  a  contingent  remaind- 
er-man, was  not  appointed  by  the  will  hut  was  appointed  by  the  original 
trustee  under  a  provision  of  the  will  authorizing  him  to  appoint  as  his 
successor   some   suitable   person   to   execute   the   trust.      The   holding 
in  the  Yates  case  is  correct  but  it  has  no  application  to  the  situation 
here.     There  the  court  was  dealing  with  the  question  whether  one  who 
had  been  appointed  as  a  successor  in  trust  under  a  power  to  appoint 
a     suitable     person     as     such     successor     should     be     removed     by 
reason  of  his  relationship  to  the  property,  while  here  appellant  is  ask- 
ing the  court  to  remove  the  trustees  appointed  by  the  will.     It  does  not 
necessarily   follow  that  because  a  court   of   equity  would  not,  under 
given  circumstances  and  conditions,  appoint  certain  persons  to  execute 
a  trust  created  by  a  will,  that  the  testator  himself  could  not  make  a 
valid  appointment  of  such  persons  under  the  same  conditions.     The 
desires  of  a  testator  in  the  appointment  of  a  trustee  will  be  observed 
although  he  may  see  fit  to  appoint  a  person  whose  relationship  to  the 
estate  is  such  that  a  court  of  equity  would  not  appoint  him  if  the  ap- 
pointment was  to  be  made  by  the  court. 

Appellant  further  contends  that  the  trustees  should  be  removed 
because  of  the  feeling  of  animosity  they  admitted  and  displayed  toward 
her.  On  the  hearing  Herman  Weller  testified  that  the  relations  be- 
tween himself  and  Henry  Lorenz  and  appellant  had  not  been  friendly ; 
that  the  trustees  did  not  consult  appellant  or  her  father  as  to  any  of 
their  acts  in  the  execution  of  the  trust;  that  he  did  not  know  how 
long  he  had  been  on  unfriendly  terms  with  appellant's  family;  that 
it  was  impossible  to  be  friendly  with  them,  and  that  he  had  never 
known  appellant  when  he  could  be  friendly  with  her.  This  is  the 
only  testimony  on  this  subject.  It  does  not  j'ppear  that  appellant  has 
ever  made  an  effort  to  consult  with  the  trustees  in  regard  to  the  exe- 
cution of  the  trust  or  upon  any  matters  relating  thereto,  or  that  they 
have  refused  or  declined  to  consult  with  her  or  carry  out  her  wishes 


60  TRUSTS.  (Part  2 

so  far  as  the  same  would  be  compatible  with  their  duties.  While  it  is 
true  that  in  many  cases  it  has  been  said  that  where  the  ill  feeling  be- 
tween trustees  or  between  the  trustees  and  the  cestui  que  trust  has  be- 
come so  bitter  as  to  prevent  beneficial  co-operation  in  the  administra- 
tion of  the  trust,  the  trustee  or  trustees  offending  will  be  removed,  that 
situation  does  not  exist  here.  While  Herman  W^eller  admits  he  is  not  on 
friendly  terms  with  appellant  or  her  father,  it  does  not  appear  that 
the  relations  are  such  as  to  interfere  with  the  beneficial  administration 
of  the  trust.  No  complaint  is  made  that  the  management  of  the  estate 
by  the  trustees  has  not  been  frugal,  honest  or  beneficial. 

Appellant  complains  that  one-third  of  the  receipts  during  the  time 
covered  by  the  two  reports  filed  by  the  trustees  has  been  paid  out  for 
expenses,  exclusive  of  commissions  and  attorney's  fees,  argues  that 
this  is  too  large  a  proportion  to  put  back  on  the  lands  in  the  way  of 
betterments,  and  insists  that  it  indicates  an  improper  administration 
of  the  trust.  She  does  not  point  out  any  particular  item  as  having  been 
improperly  expended,  and  no  attempt  was  made  upon  the  hearing  to 
show  that  unnecessary  expenses  had  been  incurred  in  the  way  of 
improving  the  property. 

From  a  careful  consideration  of  the  record  we  find  no  basis  for 
the  contention  that  the  court  erred  in  refusing  to  remove  the  trustees. 

The  decree  of  the  circuit  court  in  so  far  as  it  approved  the  item 
paid  out  for  inheritance  tax  is  reversed.  In  all  other  respects  it  is 
affirmed,  and  the  cause  is  remanded  to  the  circuit  court,  with  directions 
to  sustain  the  objection  to  the  item  paid  for  inheritance  tax. 

Reversed  in  part  and  remanded,  with  directions. 


BEAVER  V.  BEAVER. 

(New  York  Court  of  Appeals,  1889,  117  N.  Y.  421,  22  N.  E.  940.) 

This  action  was  brought  by  the  plaintiff,  as  executor  of  Aziel  G. 
Beaver,  against  The  Ulster  County  Saving  Institution,  to  recover 
certain  deposits  amounting  to  the  sum  of  $2,800  or  thereabouts,  stand- 
ing to  his  credit  on  the  books  of  the  bank. 

The  administrators  of  John  O.  Beaver  claiming  the  money  as  part 
of  his  estate,  they  were  substituted  as  defendants  in  place  of  the  bank, 
the  money  having  been  brought   into   court.     The  question   litigated 


Ch.    5)  ESSENTIALS    TO   CREATTOX   ANDi    EXISTENCE. 


61 


was,  whether  the  money  represented  by  the  deposits  and  the  accumu- 
lations had  been  vested  in  Aziel  G.  Beaver,  as  a  gift  from  John  O. 
Beaver.  The  account  with  the  bank  consisted  of  two  deposits,  one 
July  5,  1866,  of  $854.04,  and  one  of  October  5,  1866,  of  $145.96,  making 
in  the  aggregate  $1,000,  and  the  accumulations  thereon.  It  is  un- 
disputed that  the  deposit  of  $854.04  was  made  in  person  by  John  O. 
Beaver,  and  that  the  money  deposited  belonged  to  him.  The  only  evi- 
dence to  sustain  the  claim  that  it  was  given  by  him  to  Aziel  G.  Beaver 
is  found  in  the  relations  between  them,  and  the  circumstances  attend- 
ing the  deposit.  Aziel  G.  Beaver  was  the  son  of  John  O.  Beaver,  and 
in  1866  was  seventeen  years  of  age  and  resided  with  his  father,  as  one 
of  a  family  of  thirteen  children.  John  O.  Beaver  made  the  deposit 
of  July  5,  1866,  in  the  name  of  Aziel.  The  rules  of  the  bank  required 
that  on  making  the  first  deposit  the  depositor  should  subscribe  a 
declaration  of  his  assent  to  the  by-laws  of  the  institution  and  his 
promise  to  abide  by  them.  John  O.  Beaver,  at  the  date  of  the  first 
deposit,  signed,  in  his  own  name,  a  declaration  presented  to  him  by  the 
treasurer  of  the  bank,  commencing  with  the  words,  "I,  Aziel  G.  Beav- 
er, of  Esopus,  Ulster  county,  hereby  request  the  officers  of  the  Ulster 
County  Savings  Institution  to  receive  from  me  $854,  and  to  open  an 
account  with  me,"  etc.  At  the  same  time  the  savings  bank  entered 
on  its  books  an  account  beginning:  "Dr.  Ulster  County  Savings  Bank, 
m  account  with  Aziel  Beaver,"  and  crediting  said  Aziel  with  the  de- 
posit of  $854.  Under  the  name  of  Aziel  Beaver  were  originally 
written  the  words,  "payable  to  John  O.  Beaver."  The  bank  also,  at 
the  same  time,  issued  and  delivered  to  John  O.  Beaver  a  pass  book 
with  a  similar  entry,  as  in  the  account  on  the  books  of  the  bank,  con- 
taining also,  as  originally  written  the  words  "payable  to  John  O.  Beav- 
er". 

There  are  no.  facts,  except  as  above  stated,  tending  to  show  a  gift 
of  the  money  deposited  to  Aziel.  On  the  other  hand,  many  circum- 
stances were  shown  which  are  claimed  to  be  inconsistent  with  a  gift 
by  the  father  to  the  son  of  the  money  deposited.  The  son  married  a 
few  years  after  the  deposit  was  made,  and  died  in  1886,  twenty 
years  after  the  date  of  the  deposits,  being  then  of  the  age  of  thirty- 
seven  years,  leaving  a  wife,  but  no  children,  surviving.  John  O. 
Beaver,  the  father,  died  in  1888.  The  father  retained  possession  of 
the  pass-book  at  all  times  until  his  death.     .     .     . 


^2  TRUSTS.  (Part  2 

Andrews,  J.  It  is  found  that  the  money  with  which  John  O.  Beaver 
made  the  deposit  of  $854.04,  July  5,  1866,  belonged  to  him.  The  in- 
ference that  the  deposit,  $145.96,  made  October  5,  1866  was  also  made 
by  him  from  his  own  means,  does  not  admit  of  reasonable  question. 
The  pass-book  was  at  all  times  in  his  possession.  Concurrently  with 
the  last  deposit,  the  amount  was  entered  therein.  It  is  affirmatively 
shown  that  Aziel,  who  was  then  a  minor,  lived  with  his  father  and  had 
no  money  of  his  own,  and  the  circumstances  are  quite  satisfactory 
to  show  that  he  never,  at  any  time  during  his  life  knew  of  the  bank 
account.  The  question  in  the  case  turns  upon  the  legal  eiTect  of  the 
deposit,  made  in  connection  with  the  attendant  and  subsequent  cir- 
cumstances.    .     . 

There  was  no  declaration  of  trust  in  this  case,  in  terms,  when  the 
deposit  of  July  5,  1866,  was  made,  nor  at  any  time  afterwards,  and 
none  can  be  implied  from  a  mere  deposit  by  one  person  in  the  name 
of  another.  To  constitute  a  trust  there  must  be  either  an  explicit 
declaration  of  trust,  or  circumstances  which  show  beyond  reasonable 
doubt  that  a  trust  was  intended  to  be  created.  It  would  introduce  a 
dangerous  instability  of  titles,  if  anything  less  was  required,  or  if  a 
voluntary  trust  ijitcr  vivos  could  be  established  in  the  absence  of  ex- 
press words,  by  circumstances  capable  of  another  construction,  or 
consistent  with  a  different  intention. 

It  may  be  justly  said  that  a  deposit  in  a  savings  bank  by  one  person, 
of  his  own  money  to  the  credit  of  another,  is  consistent  with  an  intent 
on  the  part  of  the  depositor  to  give  the  money  to  the  other.  But  it 
does  not,  we  think,  of  itself,  without  more,  authorize  an  affirmative 
finding  that  the  deposit  was  made  with  that  intent,  when  the  deposit 
was  to  a  new  account,  unaccompanied  by  any  declaration  of  intention, 
and  the  depositor  received  at  the  time  a  pass-book,  the  possession  and 
presentation  of  which,  by  the  rules  of  the  bank,  known  to  the  depositor, 
is  made  the  evidence  of  the  right  to  draw  the  deposit.  We  cannot 
close  our  eyes  to  the  well-known  practice  of  persons  depositing  in 
savings  banks  money  to  the  credit  of  real  or  fictitious  persons,  with 
no  intention  of  divesting  themselves  of  ownership.  It  is  attributable 
to  various  reasons ;  reasons  connected  with  taxation ;  rules  of  the  bank 
limiting  the  amount  which  any  one  individual  may  keep  on  deposit ; 
the  desire  to  obtain  high  rates  of  interest  where  there  is  a  discrimination 
based  on  the  amount  of  deposits,  and  the  desire,  on  the  part  of  many 


Ch.    5)  ESSENTIALS    TO   CREATION   AND,    EXISTENCE.  63 

persons,  to  veil  or  conceal  from  others  knowledge  of  their  pecuniary 
condition.  In  most  cases  where  a  deposit  of  this  character  is  made  as 
a  gift,  there  are  contemporaneous  facts  or  subsequent  declarations  by 
which  the  intention  can  be  established,  independently  of  the  form  of  the 
deposit.  We  are  inclined  to  think  that  to  infer  a  gift  from  the  form 
of  the  deposit  alone  would,  in  the  great  majority  of  cases,  and  especial- 
ly where  the  deposit  was  of  any  considerable  amount,  impute  an  inten- 
tion which  never  existed  and  defeat  the  real  purpose  of  the  depositor. 
The  relation  of  father  and  son  does  not  in  this  case,  we  think,  strength- 
en the  plaintiff's  case.  It  may  be  true  that  as  between  parent  and  child 
a  presumption  of  a  gift  may  be  raised  from  circumstances,  where  it 
would  not  be  implied  between  strangers.  (Ridgway  v.  English,  22  N. 
J.  L.  409.)  But  where  a  deposit  is  made  in  the  name  of  another, 
without  any  intention  on  the  part  of  the  depositor  to  part  with  his 
title,  he  would  be  cjuite  likely  to  select  a  member  of  his  own  family  to 
represent  the  account,  and  in  this  case  this  is  the  natural  explanation 
of  the  transaction.     .     .     . 

We  think,  for  the  reasons  stated,  that  the  plaintiff  failed  to  establish 
a  gift,  or  to  justify  a  finding  of  a  gift.  The  question  of  gifts,  in  con- 
nection with  deposits  of  savings  banks,  has  of  late  years  been  fre- 
quently considered  by  the  courts  in  various  states.  The  preponderance 
of  authority  seems  to  be  in  favor  of  the  views  we  have  expressed.     .     . 


DEAN  V.  NORTHERN  TRUST  CO. 

(Supreme   Court    of    Illinois,    1913,    259    111.    148,    102    N.    E.    244.) 

Faraikk,  J.  ...  It  was  innnaterial  to  a  construction  of  the  will, 
which  was  the  object  of  the  suit,  whether  the  law  under  which  the 
Northern  Trust  Company  was  organized,  and  the  law  authorizing  the 
appointment  of  it  as  trustee,  were  valid  or  noi.  If  it  was  unauthorized 
to  act  as  trustee  that  wottid  ntjt  invalidate  the  will.  The  trust  created 
by  the  will  for  the  benefit  of  Morris  Rowland  Dean  was  a  valid  trust 
even  if  the  trustee  was  not  eligible  to  be  appointed  to  or  to  act  in  thai 
capacity.  (1  Perry  on  'j'rusls,  sec.  38.)  ll  tlir  appoinlnu'nl  of  the 
Northern  Trust  Company  as  trustee  was  nn;inlliori/.<.'d  ])c'cause  it 
could  nol  act  in  that  capacity,  it  would  not  alkr  or  affect  in  any  way 


fi4  TRUSTS.  (Part  2 

the  rights  of  appellant  under  the  will.  That  would  only  require  the 
appointment  of  a  new  trustee.  "If  a  trust  is  cast  upon  a  person 
incapable  of  taking  and  executing  it  courts  of  equity  will  execute  the 
trust  by  the  decree,  or  they  will  appoint  some  person  capable  of  per- 
forming the  requirements  of  the  trust."  (1  Perry  on  Trusts,  sec.  39.) 
Courts  of  equity  will  not  allow  a  trust  to  fail  for  want  of  a  trustee. 
(1  Perry  on  Trusts,  sec.  240;  Wilson  v.  Clayburgh,  215  111.  506;  French 
V.  Northern  Trust  Co.  197  id.  30.)  The  author  of  the  trust  has  the 
power  to  provide  for  the  appointment  of  a  successor  in  trust  if  the 
original  trustee  cannot  act  or  fails  to  act  for  any  reason,  but  where 
the  author  of  the  trust  makes  no  such  provision  a  court  of  chancery 
has  power  to  make  the  appointment.     .     .     . 


REYBURN  V.  BAKEWELL. 
(Missouri  Court  of  Appeals,  1901,  88  Mo.  App.  640.) 

Bland,  P.  J.  The  agreed  state  of  facts  decide  the  case  without 
anything  more.  Miss  Reyburn,  in  efifect,  put  in  defendant's  hands 
$905.68  in  money  and  said  to  him  "this  is  yours,  keep  it  for  yourself, 
if  you  will,  if  you  will  not  accept  it  as  a  gift  from  me,  keep  it  in  trust 
until  the  death  of  my  brother,  paying  him  the  interest,  after  his  death, 
give  it  to  the  Little  Sisters  of  the  Poor  of  the  city  of  St.  Louis."  Miss 
Reyburn  parted  with  all  dominion  and  control  over  the  money,  it 
became  defendant's  absolutely  as  it  was  already  in  his  hands,  to  keep 
as  a  gift  or  to  hold  in  trust  as  he  might  elect.  He  has  generously 
elected  to  treat  it  as  a  trust  and  has  assumed  the  obligations  of  a  trustee 
in  respect  to  it.  By  his  election  he  is  now  hound  to  carry  out  the 
provisions  of  the  trust  and  should  be  permitted  to  do  so  without 
hindrance,  for  the  trust  is  a  sacred  one  and  should  not  be  disturbed. 

The  judgment  is  for  the  right  party  and  is  afhrmed.     All  concur. 


Ch.    5)  NATUEE  OF    CESTUI 's    INTEREST,  65 


SECTION  III.  NATURE  OF  CESTUI'S  INTEREST. 


EWING  V.  PARRISH. 

(Missouri  Court  of  Appeals,  1910,  148  Mo.  App.  492,  128  S.  W.  538.) 

GooDE,  J.  .  .  .  Plaintiff  is  seeking  to  collect  in  the  ordinary 
way  a  money  demand  from  the  Mudd  estate  as  a  debtor  of  the  Pitkin 
estate.  But  if  anything  is  due  the  latter  estate  from  the  Mudd  estate, 
the  liability,  in  our  opinion,  did  not  arise  in  such  a  way  as  to  make  it 
recoverable  in  this  kind  of  proceeding.  It  could  only  have  arisen  from 
Mudd  being  trustee  for  plaintiff  as  administrator,  first  of  the  land  he 
boueht  in  at  the  foreclosure  sale  under  the  Burkett  deed  of  trust,  and 
secondly  of  the  notes  he  took  from  Hunt  when  the  land  was  sold  to  the 
latter.  In  other  words,  to  lay  the  Mudd  estate  liable  for  the  proceeds 
of  those  notes,  a  trust  must  be  established  wherein  Mudd  was  the 
trustee  for  plaintiff  as  administrator.  Moreover,  this  trust  would 
necessarily    be    an    express    and    not    a    resulting    or    constructive 

trust.     .     .     . 

An  action  for  money  had  and  received  will  sometimes  lie  in  favor  of 
a  cestui  que  trust  against  the  trustee.    (Johnson  v.   Smith's  Admr., 
27  Mo.  591;  Clifford  Banking  Co.  v.  Comm.  Co.,  195  Mo.  262,  94 
S.  W.  527;  Ziedermann  v.  Molasky,   118  Mo.  App.   106,  94  S.  W. 
754.)     Nevertheless,  where  the  trust  is  disputed  and  the  amount  the 
trustee  owes  unsettled,  thereby  putting  in  issue  other  questions  than 
the  right  of  the  cestui  que  trust  to  an  ascertained  balance  from  the 
trustee — where,   in    short,   the   trust   itself    must    be    established — the 
remedy  ought  to  be  in  equity.    See  for  full  examination  of  the  subject, 
Johnson  v.  Johnson,   120  Mass.  465.     Even   in   instances   when,  the 
trust  being  admitted,  an  action  for  money  had  and  received  is  tolerated, 
this  is  done  because  the  action  is  regarded  as  equitable  in  its  nature. 
It  is  clear  to  our  minds  that  a  mere  formal  demand  presented  in  the 
probate  court  is  not  the  kind  of  proceeding  in  which  the  present  con- 
troversy, considering  the   scope   of   it,   can   l)r   properly   investigated. 
(Nester  v.  Ross,  Est.,  98  Mich.  200).     The  cited  case  was  a  demand 
2  Eq.— 5 


66  TRUSTS.  (Part  2 

preferred  in  a  court  of  probate  for  damages  for  breach  of  a  contract 
wherein  the  decedent  had  agreed  to  sell  timber  lands,  or  to  manu- 
facture the  timber  on  the  lands,  and  from  the  proceeds  pay  certain 
debts  of  the  plaintiff  Nester ;  and  after  said  debts  were  paid  and  ex- 
penses, the  remainder  of  the  lands  and  timber  were  to  be  divided 
in  common  by  the  parties.  It  was  held  the  contract  was  not  only 
security  for  the  debts  to  be  paid  out  of  the  proceeds  of  the  lands  and 
timber,  but  that  it  also  created  a  trust  in  favor  of  the  claimant  Nester 
and  the  only  forum  competent  to  settle  the  rights  of  the  parties  was  a 
court  of  equity.  While  the  facts  of  that  case  are  not  identical  with 
those  at  bar,  they  are  sufficiently  analogous  for  the  opinion  to  shed  light 
on  the  question  of  law  we  are  to  decide  and  point  to  the  correct  de- 
cision. Quite  in  point  is  Norton  v.  Ray,  Excx.,  129  Mass.  230,  where 
it  appeared  the  defendant's  testator,  Isaac  C.  Ray,  bought  at  a  sale 
a  dwelling  house  for  the  plaintiff  at  the  latter's  request  and  with  his 
money  and  had  taken  a  deed  in  the  name  of  himself,  Isaac  C.  Ray,  but 
had  afterward  signed  a  paper  acknowledging  the  purchase  was  for 
Norton's  benefit,  and  that  the  premises  were  held  for  and  would  be 
conveyed  to  the  latter  upon  request.  Ray  conveyed  to  Norton's  wife, 
who  lived  apart  from  Norton,  and  the  action  was  against  Ray's  estate 
for  the  value  of  the  premises.  There,  though  the  trust  was  not  dis- 
puted, it  was  held  the  only  remedy  was  in  equity;  that  an  action  for 
money  had  and  received  would  not  lie;  citing  Johnson  v.  Johnson, 
120  Mass.  465.  In  point,  too,  is  Davis'  Admr.  v.  Coburn,  128  Mass. 
Z77,  where  the  plaintiff's  decedent  had  sent  nine  hundred  dollars  to  the 
defendant  to  keep  and  invest  for  the  decedent,  and  that  the  defend- 
ant received  the  money  and  kept  it  in  his  own  name,  but  mingled  it 
with  his  own  money.  It  appeared  no  account  had  been  rendered  of  the 
trust  and  no  settlement  of  the  amount  due  under  it  had  been  made. 
The  court  said  that  under  those  circumstances  the  remedy  was  by  bill 
in  equity,  as  an  action  at  law  will  not  lie  in  favor  of  a  cestui  que  trust 
against  the  trustee  while  the  trust  remained  open. 


GUN  V.  BARROW. 
(Supreme  Court  of  Alabama,   1850,  17  Ala.  743.) 

Dargan,  C.  J.     This  was  an  action,  brought  by  the  plaintiff  against 
the  defendant  in  error,  to  recover  four  slaves.     Upon  the  trial  a  bill 


Cll.    5)  NATTJEE  OF    CESTUI 's    INTEREST.  67 

of  exceptions  \yas  sealed  by  the  presiding  judge,  which  shows  that 
the  plaintiff,  to  prove  title  in  himself,  introduced  a  deed  of  trust, 
bearing  date  24th  day  of  January  1848,  which  was  executed  by  Larkin 
R.  Gunn,  and  which  purported  to  convey  the  slaves  in  controversy  to 
the  plaintiff,  upon  the  trusts  that  he  would  apply  the  proceeds  arising 
from  the  work  and  employment  of  said  slaves,  to  the  support  and 
maintenance  of  Nancy  E.  Barrow,  during  her  natural  life,  and  in  the 
event  that  she  should  have  a  child  or  children,  the  said  slaves  and 
their  increase,  at  her  death,  should  descend  to  such  child  or  children, 
in  equal  proportions.  .  .  .  The  deed  then  declared  that  it 
was  the  intention  of  the  donor  that  Nancy  E.  Barrow  should  have  a  life 
estate  in  the  slaves  for  her  own  separate  use,  free  from  the  charge  or 
alienation  of  her  husband,  James  H.  Barrow,  with  remainder  to  the 
child  or  children  of  the  said  Nancy,  and  if  she  should  die,  leaving  no 
child  or  children,  then  the  remainder  over  as  before  designated.  It 
was  shown  that  Nancy  E.  Barrow,  was  the  daughter  of  the  grantor, 
and  that,  at  the  time  of  the  intermarriage  between  her  and  the  de- 
fendant, the  slaves  belonged  to  the  donor.  It  also  appeared  that 
Nancy  E.  was  still  living  and  had  children.  It  was  also  shown  that  the 
slaves  went  into  the  possession  of  the  defendant  before  the  execution 
of  the  deed,  but  it  was  proved  by  the  testimony  of  the  donor  and  his 
wife,  that  the  defendant  received  the  slaves  with  the  understanding 
that  the  donor  should  execute  a  deed  of  them  of  similar  import  to  the 
one  read  in  evidence. 

If  the  property  passed  by  the  deed,  it  is  then  clear  that  the  legal 
title  vested  in  the  plaintiff  as  trustee,  and  still  remains  in  him,  for  the 
purpose  of  executing  the  trust,  and  at  law,  he  must  recover  against 
any  one,  who  withholds  the  possession  from  him.  Even  if  we  were  to 
presume,  that  the  husband's  possession  was  that  of  the  wife,  or  that 
he  held  the  slaves  for  her,  he  could  not  resist  a  recovery ;  for  so  long 
as  the  legal  title  remains  in  the  trustee,  the  trusts  not  being  executed, 
he  may  recover  at  law  against  his  own  cestui  que  trust,  unless  the 
instrument,  by  which  the  trusts  were  created,  contain  a  stipulation  that 
the  possession  shall  remain  with  the  cestui  que  trust.  We  have  said 
this  much  upon  the  supposition  that  the  court  was  influenced  in  re- 
fusing some  of  the  charges  requested,  by  the  idea  that  the  possession 
of  the  husband  must  be  considered  as  the  possession  of  the  wife,  and 
that  the  trustee  could  not  recover  against  her ;  but,  so  far  as  we  can 


68  TEUSTS.  (Part  2 

discover  from  the  record,  the  defendant  set  up  title  in  himself,  ir- 
respective of  the  right  of  his  wife.  In  either  aspect  of  the  case,  if 
the  deed  conveyed  the  title  to  the  plaintiff,  he  was  entitled  to  recover, 
for  the  trust  not  being  executed,  the  legal  title  must  still  remain  in 
him.     .     .     . 


COX  V.  WALKER. 

(Supreme  Court  of  Maine,  1847,  26  Me.  504.) 

Trespass  quare  clausum,  originally  commenced  before  a  justice 
of  the  peace.  As  the  writ  was,  when  the  action  was  commenced, 
there  was  no  allusion  in  the  declaration  or  writ,  to  the  plaintiff's  bring- 
ing the  suit  in  any  other  character,  or  capacity,  than  his  own.  While 
the  action  was  pending  in  the  District  Court,  the  plaintiff,  by  leave 
of  Court,  amended  his  writ  by  adding  after  the  plaintiff's  name  in 
the  declaration,  these  words,  "as  minister  of  the  first  Baptist  society 
in  Kennebunk.*^  The  defendants  were  Tobias  Walker,  Israel  Taylor 
and  Jamin  Smith.     .     .     . 

TennEy,  J.  This  is  an  action  of  trespass,  quare  clausum  fregit, 
brought  by  the  plaintiff  as  the  minister  of  the  First  Baptist  Society  in 
Kennebunk  and  for  their  use.  .  .  .  In  a  second  plea,  as  to  the  acts 
admitted  to  have  been  done,  the  defendants  say.  that  the  close  was 
conveyed  by  the  deed  of  George  Taylor,  dated  October  20,  1835,  to  two 
of  the  defendants  and  others,  therein  named,  to  be  held  in  trust  for 
the  First  Baptist  Society  of  Kennebunk,  for  the  use  and  support  of 
a  minister  of  the  Baptist  denomination,  and  that  the  said  two  de- 
fendants, for  themselves  and  the  other  surviving  trustees  named  in 
the  deed,  and  the  other  defendant  as  their  servant,  did  the  acts  com- 
plained of  and  admitted  by  the  defendant  to  have  been  done,  as  they 
might  fully  and  lawfully  do.  To  this  plea  the  plaintiff  replied,  that 
when  the  alleged  trespass  was  committed,  he  was  the  minister  of  the 
First  Baptist  Society  of  Kennebunk  and  in  the  possession  and  im- 
provement of  the  premises  described,  as  such  minister,  and  by  virtue 
of  a  lease  from  a  committee  of  said  society,  they  being  also  three  of  the 
trustees  mentioned  in  the  deed  of  George  Taylor,  and  tendered  an  issue 
to  the  country,  which  was  joined  by  the  defendants.     .     .     . 


Cll.    5)  NATURE  OF    CESTUI 's    INTEREST,  69 

In  trespass  upon  land,  conveyed  in  trust,  the  trustees  can  maintain 
an  action;  but  if  the  cestui  que  trust  be  in  actual  possession,  he  should 
be  the  plaintifif,  though  it  is  otherwise  in  ejectment.  1  Chitty's  Plead- 
ings, 49.  An  action  can  be  maintained  by  a  corporation,  legally  existing 
for  any  invasion  of  their  rights  in  real  estate,  in  the  same  manner  that 
it  could  be  done  by  an  individual  who  should  be  the  owner.  But  one 
who  is  neither  trustee  nor  cestui  que  trust  cannot  maintain  an  action 
in  his  own  name  for  the  use  of  one  or  the  other. 

Assuming  that  the  plaintiff  was  the  minister  of  the  society  named 
in  the  deed,  which  is  the  cestui  que  trust,  he  cannot  by  virtue  of  that 
relation  alone  sustain  the  action  for  the  use  of  that  society,  the  minister 
not  being,  according  to  the  terms  of  the  deed,  either  trustee  or  cestui 
que  trust.     ... 


CLAYTON  V.  ROE. 

(Supreme  Court  of  North  Carolina,  1882,  87  N.  C.  106.) 

Smith,  C.  J.  .  .  .  It  is  conceded  that  where  the  right  of  entry 
is  barred  and  the  right  of  action  lost  by  the  trustee  or  person  holding 
the  legal  estate,  through  an  adverse  occupation,  the  cestui  que  trust  is 
also  concluded  from  asserting  a  claim  to  the  land.  Lewin  on  Trusts, 
marginal  page  604;  Herndon  v.  Pratt,  6  Jones  Eq.  327.  And  tbe 
correlative  must  be  accepted  that  when  the  trustee  is  not  barred, 
neither  can  the  cestui  que  trust  be,  since  as  against  strangers  they  are 
identified  in  interest.  The  alleged  hostile  possession  by  the  defendant 
began  after  the  death  of  the  original  trustee  and  when  the  legal  state 
had  descended,  clothed  with  the  trust  to  his  infant  children,  and  this 
disability  prevents  the  statute  from  starting  to  run  to  their  prejudice. 
This  is  true  if  the  former  statute  governs  (rev.  Code,  ch.  65,  §  1,) 
or  the  substituted  limitations  contained  in  the  Code.  In  both  there 
is  a  saving  of  the  rights  of  infants.    C.  C.  P.  §  27.     .     .     . 


'0  TRUSTS.  (Part  2 


EWING  V.  SHANNAHAN. 
(Supremfe  Court  of  Missouri,  1893,  113  Mo.  188,  20  S.  W.  1165.) 

Black,  J.  This  is  an  action  of  ejectment  for  a  lot  in  the  city  of 
St.  Louis.  The  answer  is  a  general  denial  and  a  plea  of  the  statute  of 
limitations.     .     .     . 

In  the  case  now  in  hand  the  plaintiff  took  an  equitable  contingent 
remainder  by  force  and  effect  of  the  deed  of  trust.  Until  the  death 
of  the  donor,  the  entire  legal  title,  a  title  in  fee  simple,  was  vested 
in  the  trustee.  It  was  the  duty  of  the  trustee  to  protect  the  title 
for  those  who  should  take  upon  the  death  of  the  donor  as  well  as  for 
the  donor  during  his  life.  To  this  end  the  entire  legal  title  was  vested 
in  the  trustee,  and  the  right  of  possession  was  in  him.  As  the  trustee 
held  the  legal  fee  simple  title  and  the  right  of  possession  for  all  of 
the  beneficiaries,  he  was  the  proper  person  to  sue  for  possession; 
and  we  think  the  case  comes  within  the  rule,  that,  where  the  trustee 
is  barred  by  lapse  of  time,  the  beneficiaries  are  also  barred,  and  that  too, 
though  the  beneficiaries  are  minors.  That  which  bars  the  legal  title  here 
bars  the  equitable  title.  The  acceptance  of  a  trust  like  this  is  not  a  mean- 
ingless affair,  and,  if  the  trustee  has  made  breach  of  the  trust  and 
wronged  the  plaintiff,  the  remedy  is  against  the  trustee.  The  statute 
of  limitations  is  one  of  repose,  and  should  be  applied  in  this  case.     .     . 

Our  conclusion  is  that  the  statute  began  to  run  against  both  the  legal 
and  equitable  title  when  defendant  took  possession;  that  the  legal 
and  equitable  titles  were  both  barred  by  ten  years  adverse  possession, 
and  this  too  though  the  owner  of  the  equitable  title  was,  during  all  that 
time,  an  infant.  That  defendant's  possession  has  been  adverse,  and 
that  too  for  a  period  of  twenty  years,  cannot  be  questioned.     .     .     . 


ELLIOTT  V.  LANDIS  MACHINE  CO. 

(Supreme  Court  of  Missouri,  1911,  236  Mo.  546,   139  S.  W.  356.) 

Graves,   P.  J.     Plaintiffs  state  that  their  suit  is  one  in  equity  to 
declare  a  trust  and  to  compel  an  accounting.     .     .     . 


Cll.    5)  NATUKE  OF    CESTTl's    INTEREST.  71 

In  the  case  at  bar  we  have  a  trustee  conveying  the  legal  title  di- 
rectly to  the  parties  sued  as  defendants.  Not  only  so,  but  such  de- 
fendants had  knowledge  of  the  trust.  They  had  been  parties  to  the 
creation  of  the  trust.  The  question  that  we  have  to  decide,  is,  can 
the  Statute  of  Limitations  be  successfully  invoked  against  the  bene- 
ficiaries under  disabilities,  because  it  has  fully  run  against  a  trustee 
who  has  conveyed  the  legal  title  to  the  parties  sued  by  the  beneficiaries, 
when  such  parties  had  full  knowledge  of  the  trust?  This  state  of 
facts  has  not  been  adjudicated  by  this  court.  The  case  law  is  not 
a  unit  upon  the  question.  We  are  therefore  left  free  to  discuss  the 
question  from  principle.  We  start  with  the  doctrine,  that  one  who 
knowingly  takes  title  to  property  which  is  subject  to  a  trust,  him- 
self becomes  a  trustee,  ex  malcficio.  If  in  the  case  at  bar  the  defend- 
ants Fleming  and  Dobyne  knew  that  Mrs.  Landis  held  this  stock  in 
trust,  and  with  that  knowledge  bought  it,  then  in  my  judgment  they 
became  trustees  ex  maleficio,  and  would  have  to  account  to  the  bene- 
ficiaries of  the  trust.     .     .     . 

In  the  case  of  Parker  v.  Hall,  2  Head,  1.  c.  645,  the  Tennessee 
court  thus  speaks:  "As  to  the  Statute  of  Limitations,  it  can  have 
no  operation  in  the  case.  When  the  cause  of  action  accrued,  the 
owners  of  these  slaves  were  all  under  the  disability  of  infancy,  and 
one  of  them  was  still  an  infant  at  the  institution  of  this  suit;  and  upon 
the  principles  of  Shute  v.  Wade,  5  Yer.  1,  all  are  saved  from  the 
bar.  The  position  that  when  the  trustee  is  barred  all  the  beneficiaries 
are  barred,  though  they  may  be  under  disability,  has  no  application 
here.  That  doctrine  only  applies  where  the  trustee  could  sue,  but 
fails  to  do  so,  as  where  a  stranger  intrudes  himself  into  the  trust 
estate  and  holds  wrongfully,  and  adversely,  both  to  the  trustee  and 
the  beneficiaries.  In  such  a  case,  if  the  trustee  fail  to  sue  and  is 
barred,  the  beneficiaries,  though  infants,  etc.,  are  also  barred.  But 
here,  George  H.  Parker  the  trustee  and  owner  of  the  legal  estate, 
had  estopped  himself  from  suing  by  his  bill  of  sale.  He  had  turned 
against  his  wards,  and  united  with  the  defendant  in  a  breach  of 
trust.  The  wrong  was  to  them,  not  to  him.  He  could  not  sue  for, 
or  represent  them.     .     .     . 

To  our  mind  the  distinction  drawn  by  the  Tennessee  court  is  well 
taken.  In  other  words,  if  the  trustee  by  a  conveyance  undertakes  to 
convey  to  a  purchaser  the  property  stripped  of  the  trust,  and  such 
purchaser  takes  with  knowledge  of  the  facts,  then  beneficiaries  under 


72  TRUSTS.  (Part  2 

disability  have  the  right  to  sue  within  the  statutory  period  prescribed, 
after  disabiHty  has  been  removed.  Such  a  case  is  different  from  one 
where  the  trustee  has  not  so  acted.  It  is  different  from  the  case  of 
a  person  having  some  claim,  who  takes  possession  of  real  estate  (trust 
property)  and  claims  adverse  possession,  but  in  which  act  the  trustee 
has  not  concurred  by  overt  act.  This  is  the  distinction  between  the 
case  at  bar  and  the  Missouri  cases  relied  upon  by  defendants,  and 
discussed  supra.  To  hold  that  a  trustee  can  join  with  a  purchaser 
with  notice,  and  convey  the  property  stripped  of  the  trust,  is  to  open 
wide  the  door  for  fraud  as  against  infant  l^eneficiaries.  We  cannot 
subscribe  to  the  doctrine  urged  by  defendants.  Its  pernicious  effects 
would  be  endless.  Our  court  has  not  gone  so  far  up  to  this  date,  as 
the  cases  cited  can  be  clearly  distinguished  on  the  facts. 

We,  therefore,  hold  that  the  cause  of  action  is  not  barred.     .     .     . 


AMERICAN  NATIONAL  BANK  v.  FIDELITY  &  DEPOSIT  CO. 

(Supreme  Court  of   Georgia,  1907,  129  Ga.   126,  58  S.   E.   867.) 

In  December,  1893,  H.  C.  Tindall  and  others,  owners  of  all  the 
capital  stock  of  the  Macon  Hardware  Company,  hereinafter  called 
the  "Hardware  Company,"  a  private  corporation,  filed  their  petition 
to  a  superior  court  of  Bibb  county,  alleging  the  insolvency  of  the 
Hardware  Company,  and  praying  that  a  receiver  be  appointed  to 
administer  the  assets  of  the  corporation  for  the  benefit  of  its  cred- 
itors. The  Hardware  Company  and  its  creditors,  including  the 
National  Bank  and  the  Exchange  Bank,  were  made  parties  defend- 
ant to  this  petition.  Thereafter  the  Exchange  Bank,  the  National 
Bank,  and  numerous  other  creditors  of  the  Hardware  Company 
entered  their  appearance  in  said  suit,  set  up  certain  claims  against 
the  Hardware  Company,  and  asserted  their  rights  to  share  in  the 
distribution  of  its  assets.  On  January  9,  1894,  the  court  passed  an 
order  appointing  said  Tindall  permanent  receiver  of  the  Hardware 
Company,  and  designated  certain  banks,  among  them,  the  Exchange 
Bank,  and  the  National  Bank,  as  depositories  to  receive,  hold,  and 
disburse  the  funds  of  the  receivership,  "provided  that  the  said  banks 
will  pay  the  customary  rates  of  interest  on  such  deposits  at  the  rate 


C'h.    5)  NATURE  OF    CESTX'i's    INTEREST.  7o 

of  5  per  cent,  per  annum,  if  left  in  the  banks  for  six  months,  and  no 
interest  to  be  charged  for  the  last  30  days  prior  to  said  money  being 
checked  out ;  each  bank  to  have  30  days'  notice  of  the  intention  to 
check."  Said  order  also  provided  that  "the  said  receiver  is  hereby 
authorized  and  directed  to  make  his  deposits  as  aforesaid  in  his 
name  as  receiver,  and  no  check  shall  be  drawn  against  such  deposit.-;, 
except  in  his  name  as  receiver,  countersiged  by  the  judge  presiding 
of  this  court,  except  that  checks  drawn  for  expenses  may  be  drawn 
without  being  countersigned  by  the  judge  as  aforesaid,  but  the  said 
checks  shall  specify  for  what  expenses  drawn."  The  Exchange  Bank, 
the  National  Bank,  and  certain  other  named  banks  accepted  said 
designation  as  depositories  under  the  terms  of  said  order.     .     .     . 

It  is  alleged  in  the  petition  that  the  Exchange  Bank  and  the  National 
Bank  failed  and  neglected  to  comply  with  the  requirements  of  the 
aforesaid  order  of  the  court,  and  paid,  out  of  the  funds  deposited 
with  them,  various  sums,  aggregating  $2,901.53  and  $475.44,  respec- 
tively, upon  checks  signed  by  "H.  C.  Tindall,  receiver";  that  none  of 
said  checks  had  upon  them  any  statement  with  reference  to  expenses, 
and  were  not  countersigned  by  the  judge,  as  provided  in  said  order; 
and  that  the  receiver  appropriated  the  money  so  withdrawn  to  his 
own  use,  and  has  never  accounted  for  the  same.     .     .     . 

Beck,  J.  1.  In  the  absence  of  notice  or  knowledge,  a  bank  cannot 
question  the  right  of  a  customer  to  withdraw  a  fund,  nor  refuse  the 
demands  of  the  depositor  by  check;  and  it  is  also  true  that,  if  money 
be  deposited  by  one  as  trustee,  the  depositor,  as  trustee,  has  the  right 
to  withdraw  it,  and,  in  the  absence  of  knowledge  or  notice  to  the  con- 
trary, the  bank  would  have  a  right  to  presume  that  the  trustee  woukl 
appropriate  the  money  when  drawn  to  a  proper  use ;  but  it  is  also  true 
that,  if  a  bank  has  notice  or  knowledge  that  a  breach  of  trust  is  being 
committed  by  the  improper  withdrawal  of  funds,  it  incurs  liability, 
becomes  responsible  for  the  wrong  done,  and  may  be  made  to  replace 
the  funds  which  it  has  been  instrumental  in  diverting.  The  Supreme 
Court  of  Maryland  held  that  a  bank,  which  credited  a  check  to  the 
individual  account  of  a  named  person,  when  the  check  itself  stated  that 
it  was  for  "deposit  to  the  credit  of"  the  person  named,  with  the  word 
"trustee"  added  to  his  name,  was  liable  for  participating  in  the  breach 
of  trust  in  case  of  Itjss  ensuing  to  the  trust  estate  by  reason  of  his 
drawing  (nit  the  fund  by  checks  on  his  personal  account.     In  ihe  case 


74  TRUSTS.  (Part  2 

referred  to,  the  court  said:  "To  deposit  to  the  credit  of  Henry  W. 
Clagett,  trustee,  was  an  exphcit  notification  to  the  bank  that  Clagett 
was  not  the  actual  owner  of  the  money.  It  was  an  equally  explicit 
instruction  to  the  bank  not  to  place  the  fund  to  the  credit  of  Clagett's 
personal  account.  .  .  .  Knowing  that  the  money  was  not  Clagett's, 
but  that  it  was  payable  to  him,  and  to  be  deposited  to  his  credit  as 
trustee,  the  bank  had  no  authority  to  place  it  to  his  individual  credit ; 
and,  if  loss  ensued  by  reason  of  Clagett  drawing  the  fund  out  by  check 
on  his  personal  account,  the  bank  is  liable  to  make  restitution  to  the 
trust  estate.  The  bank,  in  the  eye  of  the  law,  participated  in  the  breach 
of  trust  of  which  Clagett  was  guilty."  Duckett  v.  Nat.  Bank,  86  Md. 
403,  38  Atl.  983,  39  L.  R.  A.  89,  63  Am.  St.  Rep.  513,  citing  Bundy  v. 
Monticello,  84  Ind.  119.  "If  the  bank  participates  with  the  trustee  in 
a  misappropriation  of  the  funds,  or  knowingly  permits  such  misappro- 
priation to  take  place,  it  must  answer  to  the  beneficiary  for  loss  thereby 
occasioned."  3  Am.  &  Eng.  Enc.  Law  (2nd  ed.)  832.  See,  also,  cases 
cited  supporting  the  text. 

Much  stronger  is  the  reason  for  holding,  in  the  case  at  bar,  that  the 
bank  participated  in  the  breach  of  trust,  than  in  the  case  of  Duckett  v. 
Nat.  Bank,  supra.  It  was  agreed  in  this  latter  case,  in  behalf  of  the 
bank,  that  if  the  bank  had  obeyed  the  direction  given  to  it,  and  had 
opened  an  account  with  Clagett  (the  depositor)  as  trustee,  still  Clagett 
could  have  withdrawn  the  funds  on  checks  appropriately  signed,  and 
could  then  have  misapplied  the  money  without  involving  the  bank.. 
But  in  the  case  at  bar  Tindall,  the  receiver,  could  not  by  checks,  how- 
ever appropriately  signed  by  himself,  unless  they  were  also  counter- 
signed by  the  judge,  have  withdrawn  the  funds.  Such  were  the  ex- 
press terms  of  the  order  or  decree.  The  defendants  knew  the  pro- 
visions made  in  the  decree  as  to  the  manner  in  which  checks,  except 
checks  for  expenses,  should  be  signed.  They  knew  that  they  were 
depositories  of  trust  funds,  for  the  safeguarding  of  which  extraordi- 
nary care  and  caution  was  being  exercised  by  the  court.  We  do  not 
know  by  the  use  of  what  terms  of  direction,  in  a  decree  or  order  for  the 
deposit  of  funds  in  a  designated  bank,  more  emphatic  notification 
could  have  been  given  this  defendant  that  payment  upon  any  check, 
not  countersigned  as  prescribed  in  this  order,  would  amount  to  an 
aiding  of  a  trustee  in  the  misapplication  of  the  funds.  By  the  im- 
proper withdrawal  of  the  funds  Tindall  was  clearly  guilty  of  a  breach 


Ch.    5)  NATUEE  OF    CESTUI 's    II^TEEEST.  75 

of  trust.  The  bank  had  knowledge  of  this  breach  of  trust,  knowing, 
as  it  did,  the  express  terms  upon  which  Tindall  might  check  out  the 
money — ^ternis  which,  so  far  as  affect  the  sum  now  sued  for,  were 
plainly  violated.  Having  the  knowledge  thai  a  breach  of  trust  was 
being  committed,  by  payment  of  the  checks  improperly  drawn  and 
not  countersigned  by  the  judge  of  the  superior  court,  it  aided  in  that 
breach,  and  in  the  consequent  misapplication  of  the  funds;  and,  having 
done  so,  it  became  liable  to  the  beneficiaries  of  the  tntst — that  is,  to 
the  creditors  of  the  Macon  Hardware  Company,  to  whom  Tindall  sus- 
tained a  fiduciary  relation.     .     ,     . 


TURNER  V.  HOYLE. 

(Supreme  Court  of  Missouri,  1888,  95  Mo.  337,  8  S.  W.  157.) 

Brace,  J.  .  .  .  That  the  promissory  note  pledged  by  Jamison 
as  collateral  security  for  the  loan  which  defendant  made  him  and  for 
which  he  executed  his  individual  note  to  the  defendant  was  a  part  of 
the  trust  fund,  that  the  plaintiff  is  the  trustee  of  that  fund,  that  the 
money  obtained  by  Jamison  was  not  applied  to  any  of  the  purposes  of 
the  trust,  but  to  his  own  use,  is  undisputed.  But  it  is  contended  that 
the  instrument  creating  the  trust  having  conferred  upon  the  trustee 
the  power  to  change  the  character  of  the  fund,  the  trustees  had  power 
to  sell  or  vary  the  securities  and  in  hypothecating  the  note  as  he  did  he 
conferred  upon  the  defendant  a  perfect  title,  and  could  do  so  although 
the  defendant  may  have  known  that  the  note  was  trust  property.  This 
point  was  not  overlooked  by  the  learned  judge  before  whom  the  case 
was  tried  below,  who  furnishes  an  answer  to  this  contention  in  the 
following  language:  "When  a  trustee  with  power  to  change  invest- 
ments, and  professing  to  act  on  behalf  and  for  the  trust  estate,  in- 
duces a  third  person  to  buy  from  him  trust  property,  or  to  advance 
upon  it,  the  third  persons  acting  in  good  faith  will  acquire  a  good  title 
although  the  trustee  convert  the  proceeds  of  the  sale  or  advance  to  his 
own  use.  The  third  party  acting  under  the  circumstances  stated,  is 
not  bound  to  see  to  it,  that  the  proceeds  of  his  purchase  or  advance  are 
properly  applied  by  the  trustee.  But  this  rule  has  no  application  when 
the  trustee  is  not  professing  to  act  for  or  on  behalf  of  the  trust  estate. 


76  TEUSTS.  (Part  2 

or  the  third  party  is  not  deahng  with  him  in  good  faith,  beheving  that 
the  trustee  is  making  the  sale  or  getting  the  advance  on  behalf  of  the 
trust  estate.  In  the  case  at  bar  the  evidence  shows  that  Jamison  solicit- 
ed Hoyle  to  make  him  a  short  loan  upon  good  collateral.  He  did  not 
mention  the  trust;  he  did  not  ask  for  a  loan  on  behalf  of  the  trust ;  he 
asked  it  for  himself  individually,  and  the  loan  was  made  to  him  in- 
dividually. On  the  face  of  the  transaction  it  was  a  clear  case  of  the 
conversion  by  Jamison  of  a  trust  asset,  for  his  individual  purposes, 
and  later  developments  proved  that  it  was  nothing  else.  Under  these 
circumstances  it  would  seem  very  clear  that  Hoyle  cannot  assert  any 
title  as  against  the  present  trustee  if  he  took  the  note  with  notice  that 
it  was  part  of  the  trust  property,  or  was  chargeable  with  notice  of  that 
fact."      .     .     . 


SHOE  &  LEATHER  NATIONAL  BANK  V.  DIX. 

(Supreme  Court  of  Massachusetts,  1877,  123  Mass.  148.) 

Contract  against  the  makers  of  the  following  instrument : 
"February  16,  1871,  $53,000.  For  value  received,  we  as  trustees 
but  not  individually  promise  to  pay  to  the  Boston  Water  Power  Com- 
pany or  order,  the  sum  of  fifty-three  thousand  dollars  in  five  years 
from  this  date,  with  interest  to  be  paid  semi-annually,  at  the  rate  of 
seven  per  centum  per  annum,  during  said  term,  and  for  further  time 
as  said  principal  sum  or  any  part  thereof  shall  remain  unpaid. 
"Signed  in  presence  of  P.  H.  Sears. 

Geo.  P.  Sanger,     '"\ 

Joseph  Dix,  y        Trustees 

R.  A.  Ballou,         J 

"Secured  by  mortgage  of  real  estate  in  Boston,  duly  stamped,  to  be 
recorded  in  Sufifolk  Registry  of  Deeds."     .     .     . 

Prior  to  February  16,  1871,  there  existed  a  private  association  of 
persons  who  agreed  to  act  in  concert  together  in  purchasing  real  estate 
in  this  and  the  adjacent  counties.  This  association  made  the  defend- 
ants, who,  with  other  persons,  were  then  members  thereof,  its  trustees 
to  effect  such  purchases  of  real  estate,  with  powers  and  duties  con- 
cerning the  same,  substantially  as  set   forth  in  the  deed  hereinafter 


Ch.    5)  NATUEE  OF    CESTUI 's    INTEREST.  77 

mentioned.  On  February  16,  1871,  the  association,  through  its  said 
trustees,  caused  a  purchase  of  property  from  tlie  Roston  ^^'ater  Power 
Company  to  be  elTected,  and  the  conveyance  to  be  made  to  the  de- 
fendants, "as  they  are  trustees  for  the  Brookhnc  Avenue  Associates 
as  hereinafter  set  forth."  "To  have  and  to  hold  the  granted  premises, 
with  all  the  privileges,  easements  and  appurtenances  thereto  belonging, 
to  the  said  Sanger,  Dix  and  Ballon,  as  joint  tenants  and  not  as  tenants 
in  common,  and  to  their  heirs  and  assigns  and  to  the  survivor  of  them 
and  his  heirs  and  assigns  forever,  in  trust  nevertheless  for  the  Brook- 
line  Avenue  Associates  for  the  following  purposes :  to  take,  hold, 
mortgage,  lease,  manage  and  improve  the  same  according  to  the  exer- 
cise of  their  best  discretion,  with  full  power  in  the  trustees  or  trustee 
for  the  time  being,  in  the  exercise  of  such  discretion,  to  sell  at  public 
or  private  sale  any  portion  or  the  whole  of  the  real  estate  hereby  con- 
veyed, and  to  make,  execute  and  deliver  good  and  sufficient  deeds  to 
convey  the  same  in  fee  simple  free  from  the  trusts  hereby  creat- 
ed."    .     .     . 

Ames,  J.     The  question  whether  the  defendants  have  made  them- 
selves personally  responsible  must  be  determined  by  the  terms  of  the 
note  itself.     In  determining  the  proper  interpretation  of  any  written 
contract,  the  court  will  give  full  effect  to  all  the  terms  in  which  it  is 
expressed.     Those  terms  will  not  be  modified  by  extrinsic  evidence 
tending  to  show  that  the  real  intention  of  the  parties  was  something 
different    from   what   the   language   imports.     They   will   be   taken   in 
their  plain,  ordinary  and  popular  sense,  except  where  it  may  be  quali- 
fied by  some  special  usage,  or  where  the  context  evidently  shows  that 
the  parties  in  some  particular  case  had  a  different  intent.     It  is  no  part 
of  the  business  of  the  court  to  make  or  alter  a  contract  for  the  parties. 
Even  if  it  be  found  that  the  contract,  according  to  its  true  meaning, 
has  no  legal  validity,  or  fails  to  become  operative,  it  is  not  for  the  court, 
in  order  to  give  it  operation,  to  suppose  a  meaning  which  the  parties 
have  not  expressed,  and  which  it  is  certain  they  did  not  entertain.     It 
must  be  assumed  that  all  the  language  used  in  the  contract  was  selected 
with  some  purpose  and  is  to  be  of  some  effect.     If  a  party,  therefore, 
in  a  contract  into  which  he  voluntarily  enters,  and  not  in  the  execution 
of  any  official  trust  or  duty,  makes  it  an  express  stipulation  that  he  is 
acting  for  somebody  else,  and  is  in  no  event  to  be  personally  liable,  he 
certainly  cannot  be  rendered  so  by  law.     Sedgwick  J.,  in  Sumner  v. 


78  TEUSTS.  (Part  2 

Williams,  8  Mass.  162,  184.  In  a  question  as  to  the  meaning  of  a  con- 
tract, the  want  of  apt  words  to  create  a  personal  responsibility  is  not 
to  be  supplied  by  the  alteration  or  enlargement  of  its  terms. 

In  applying  these  familiar  and  elementary  rules  of  construction  to 
the  case  now  before  us,  we  find  that  the  defendants  promised  "as 
trustees  but  not  individually."  The  construction  contended  for  by  the 
plaintiffs  would  require  us  to  strike  out  the  words  "but  not  individu- 
ally;" although  in  so  doing  we  should  not  only  alter  the  contract,  but 
should  impose  upon  them  a  liability  which  apparently  they  took  special 

pains  to  avoid. 

It  is  to  be  borne  in  mind  that  this  was  not  a  case  of  agents  acting 
for  an  undisclosed  or  unknown  principal,  and  is,  therefore,  readily 
distinguishable  from  Winsor  v.  Griggs,  5  Cush.  210,  and  cases  of  that 
class.  Neither  was  it  an  attempt  by  the  defendants  to  bind  property 
over  which  they  had  no  legal  control.  By  the  terms  of  the  deed  they 
had  power  to  mortgage,  lease  and  manage  the  property  at  their  dis- 
cretion, but  for  the  benefit  and  on  the  account  of  the  equitable  owners, 
namely,  the  members  of  the  Brookline  Avenue  Association.  In  this 
respect  the  case  differs  from  Thacher  v.  Dinsmore,  5  Mass.  299,  For- 
ster  V.  Fuller,  6  Mass.  58,  and  other  cases  of  that  class,  in  which  a 
party  promising  "as  guardian,"  etc.  was  held  to  have  made  himself 
personably  liable. 

Neither  can  it  be  said  that  the  term  "trustees"  was  used  as  "a  mere 
description  of  the  general  relation  or  office  which  the  person  signing 
the  paper  holds  to  another  person  or  to  a  corporation,  without  indi- 
cating that  the  particular  signature  is  made  in  the  execution  of  the 
office  and  agency."  In  this  respect  the  case  dift'ers  from  Tucker  Manuf . 
Co.  v.  Fairbanks,  98  Mass.  101.  It  often  has  happened  that  an  agent 
for  another  person,  or  the  treasurer  of  a  corporation,  has  made  him- 
self personally  responsible,  by  the  form  of  the  words  in  which  he  has 
expressed  himself  in  a  written  contract,  when  he  may  have  intended 
to  bind  his  principal  only.  Cases  in  which  this  question  has  been 
raised  have  often  been  before  this  and  other  courts,  and  the  authorities 
have  recently  been  collected  and  reviewed  in  several  of  our  own  de- 
cisions. See  Slawson  v.  Loring,  5  Allen,  340;  Barlow  v.  Lee  Con- 
gregational Society,  8  Allen,  460;  Tucker  Manuf.  Co.  v.  Fairbanks, 
ubi  supra.  But  we  believe  no  case  can  be  found  in  which  a  promise 
"as  trustee,"  &c.,  accompanied  with  an  express  disclaimer  of  personal 
liability,  would  fail  to  exempt  him. 


Cll.    5)  EESULTINO  AND    CONSTRUCTIVE    TRUST.  .  79 

It  is  contended  that  if  these  defendants  are  not  hable  upon  the  con- 
tract as  a  note,  then  nobody  is  hable.  Even  if  such  were  the  fact,  it 
would  not  be  in  the  power  of  the  court,  as  we  have  already  seen,  to 
alter  the  contract  for  the  purpose  of  giving  it  validity.  In  deciding 
whether  the  defendants  have  or  have  not  bound  themselves,  we  need 
not  decide  whether  they  have  or  have  not  bound  their  principals. 
Abbey  v.  Chase,  6  Cush.  54.  But,  even  if  the  written  contract  should 
fail  of  taking  effect  as  a  negotiable  note,  it  might  still  be  operative  as 
an  acknowledgment  of  unpaid  debt,  which  the  mortgage  was  intended 
to  secure.  It  may  be  that  this  was  all  that  the  original  parties  intended, 
or  supposed  to  be  material.  They  may  have  considered  the  mortgage 
sufficient  security,  without  the  personal  responsibility  of  the  trustees. 

Our  conclusion  therefore  is  that,  without  proof  that  the  defendants, 
as  trustees,  have  funds  of  the  association  in  their  hands  appliable  to 
this  debt,  no  action  can  be  maintained  against  them.  No  evidence  to 
that  effect  having  been  offered,  we  must  order,  judgment  for  the  de- 
fendants. 


SECTION  IV.     RESULTING  AND  CONSTRUCTIVE  TRUSTS 


ACKER  V.  PRIEST. 

(Supreme  Court  of  Iowa,  1894,  92  Iowa,  610,  61  N.  W.  235.) 

DeemEr,  J.  The  plaintiffs  in  the  equity  suit  are  the  heirs  at 
law  of  Elizabeth  Priest,  deceased,  and  the  defendant  Stephen  C.  Priest 
is  their  father.  Mrs.  Priest  was  a  daughter  of  one  Joseph  Abrams. 
Joseph  Abrams  had  one  son  and  three  daughters,  besides  Mrs.  Priest. 
In  the  month  of  July,  1884,  Abrams,  who  was  then  living  in  the  state 
of  Kansas,  concluded  to  make  a  partial  distribution  and  advancement 
of  his  property  to  his  children.  He  was  then  the  owner  of  two  farms 
in  Kansas,  one  of  which  was  known  as  his  "Home  Farm,"  and  the 
other  was  occupied  by  defendant  Priest  and  his  family.  Thomas  W. 
King,  another  son-in-law,  owned  and  occupied  another  and  a  third 
farm  in  the  same  countv  as  the  other  two.     In  order  to  carrv  out  his 


80.  TRUSTS.  (Part  2 

purpose,  and  make  an  equal  distribution  of  property  to  his  daughters, 
Abrams  made  arrangements  with  King  to  exchange  the  "home  farm," 
vahied  at  eight  thousand  dollars,   for  the  King  place,  at  the  agreed 
price  of  four  thousand  dollars.     Prior  thereto,  however,  Abrams  had 
had  a  conversation  with  defendant  Priest,  in  which  he  told  him  he 
intended  to  give  him  a  farm.     After  making  arrangements  with  King, 
Abrams  informed  defendant  that  he  had  an  opportunity  to  trade  the 
"home  farm"  for  King's  land  and  directed  defendant  to  go  and  look 
at  the  farm,  and  if  it  suited  him  he   (Abrams)   would  make  the  ex- 
change.    Defendant,  after  examining  the  place,  was  pleased  with  it, 
and  so  informed  Abrams,  and  Abrams   made   the  contemplated   ex- 
change.   Abrams  deeded  the  home  farm  to  King,  and  King,  by  direc- 
tion of  Abrams,  and  with  the  knowledge,  direction,  and  consent  of  the 
deceased,  Mrs.  Priest,  made  a  deed  to  his  place  to  the  defendant  Priest. 
This  last  deed  was  a  warranty  deed,  in  the  usual  form  and  for  the  ex- 
pressed consideration   of    four   thousand   dollars.      Shortly   after   the 
making  of  these  deeds,  the  defendant  moved  onto  the  King  farm  and 
used  and  occupied  it  for  a  year  or  more,  when  he  sold  it,  and  with  the 
proceeds  purchased  a  farm  in  Cass  county,  Iowa,  from  one  Isabella 
Goodale.    The  deed  to  the  Cass  county  land  was  taken  in  the  name  of 
the  defendant  with  the  knowledge  and  consent  of  his  wife.    Defendant 
and  his  wife  immediately  took  possession  of  the  Cass  county  land,  and 
occupied  and  used  the  same  until  the  death  of  the  wife,  in  April,  1888. 
After  the  death  of  the  wife,  and  in  May  1891,  the  defendant  sold  the 
land  in  Cass  county,  and  at  the  time  of  the  commencement  of  this  suit 
was  in  possession  of  a  large  part  of  the  proceeds  of  the  sale.   Plaintiffs 
claim  that  the  defendant  at  all  times  had  the  title  to  the  Kansas  land 
and  to  the  land  in  Cass  county  in  trust  for  his  wiie,  Elizabeth  V.  Priest, 
and  that  they,  as  her  heirs  at  law,  are  entitled  to  have  a  trust  impressed 
upon  the  funds  now  in  the  hands  of  the  defendant,  arising  out  of  the 
sale  of  the  Cass  county  land.     Defendant  Isaac  Dickerson  was  made 
a  party  to  the  suit  because  of  his  having  possession  of  some  of  the 
funds  arising  from  the  sale  of  the  land  in  this  state.     .     .     . 

Plaintiffs  do  not— nor,  indeed,  could  they,  under  the  statutes  of 
either  Kansas  or  of  this  state— claim  an  express  trust  in  the  fund,  or 
the  proceeds  thereof.  Their  claim  is  that  from  the  transaction  be- 
tween the  parties,  as  proved,  there  arose  an  implied,  a  resulting,  or  a 
constructive  trust,  wdiich  the  law  will  recognize  and  enforce.    We  turn, 


Ch.    5)  EESUI/riNG  AND    CONSTRUCTIVE    TRUST.  81 

then,  to  the  evidence,  and  find  that  while  it  was  the  intention  of  Abrams 
to  make  a  partial  distribution  of  his  estate  among  his  heirs,  yet  it  did 
not  appear  to  him  to  be  important  to  whom  he  made  the  deeds — whether 
to  his  daughters,  in  their  own  names,  or  to  their  husbands.     The  deed 
to  the  home   farm   was  made  to   King,  the   luisband   of   one   of   his 
daughters,  and  the  deed  to  the  King  farm  was  made  direct  to  defendant 
Priest.    Abrams  had  previously  spoken  to  defendant  about  giving  him 
a  farm,  and  while  -the  deed  was.  no  doubt,  made  so  as  to  place  all  his 
children  on  an  equality,  it  is  quite  evident  to  us  that  it  was  wholly 
immaterial  to  him  to  whom  the  deed  should  be  made.     Before  having 
the   deed  made   to   defendant,   Abrams   spoke   to   his   daughter,   Mrs. 
Priest,  about  how  the  deed  should  be  made,  and  "she  said  to  make  it 
to  her  husband;  it  was  all  the  same."     Again,  Abrams  testifies,  "My 
daughter  gave  no  reason  (for  making  the  deed  to  her  husband),  ex- 
cept that  it  would  be  all  right,  recognizing  him  as  her  husband."  Even 
if  Abrams  intended  the  deed  to  be  for  the  benefit  of  Mrs.  Priest  and 
her  children,  as  he  says,  he  did  not  so  state  to  defendant,  and  defendant 
had  no  knowledge  but  that  he  was  to  take  the  beneficial  as  well  as  the 
legal  estate.    Abrams  directed  King  to  make  the  deed  to  defendant,  and 
King  had  no  conservation  whatever  with  defendant. 

Applying  these   facts  to   the   statutes   of    Kansas,   before   quoted,  ^ 
with  reference  to  the  creation  of  trusts,  and  it  is  clear  that  defendant 
took  an  absolute  title  to  the  land  deeded  him  by  King,  unincunibered 
with  any  trust.     It  is  contended,  however,  that  the  laws  of   Kansas 
have  no  application  to  this  case,  that  the  statutes  above  quoted  relate 
simply  to  the  remedy,  and  that  the  lex  fori  governs.     Without  de- 
ciding this  question,  so  far  as  it  relates  to  the  statute  of  frauds,  for  it 
is  not  necessary  to  a  determination  of  the  case,  and  passing  it  with 
the  single  remark  that  where  the  statute  relates  simply  to  the  remedy, 
and  does  not  make  the  parol  contract  void,  as  is  the  case  with  the 
statute  in  question,  there  is  much  force  in  appellants'  position,  we  are 
clearly  of  the  opinion,  however,  that  the  other  statutes  with  reference  to 
the  creation  of  trust  estates  are  binding,  for  they  go  to  the  validity  and 

iGen.  W.  Kan.  1868,  c.  114,  §  6;  When    a    conveyance    for    a   valuable   con- 
sideration is  made  to  one  person,  and  the  consideration  thereof  paid  by  an- 
other, no  use  or  trust  shall  result  in  favor  of  the  latter,  but  the  title  shall 
vest  in  the  former,  subject  to  the  provisions  of  the  next  two  sections. 
2  Eq.— 5 


82  TRUSTS.  (Part  2 

operation  of  the  contract,  and  of  the  alleged  trust  in  the  land.  It  is 
familiar  doctrine  that  the  law  of  the  place  where  the  contract  is  made 
is  to  govern  as  to  its  nature,  validity,  obligation,  and  interpretation, 
and  the  law  of  the  forum  as  to  the  remedy.  Bank  v.  Donnally,  8  Pet. 
361 ;  Scudder  v.  Bank,  91  U.  S.  406;  Burchard  v.  Dunbar,  82  111.  450. 
It  is  also  everywhere  acknowledged  that  the  title  and  disposition  of 
real  property  are  exclusively  subject  to  the  laws  of  the  country  where 
it  is  situated,  which  can  alone  prescribe  the  mode  by  which  a  title  to 
it  can  pass  from  one  person  to  another.  Korr  v.  Moon,  9  Wheat.  565 ; 
McCormick  v.  Sullivant,  10  Wheat.  196.  And  a  title  or  right  in  or 
to  real  estate  can  be  acquired,  enforced,  or  lost  only  according  to  the 
law  of  the  place  where  such  property  is  situated.  Benttely  v.  Whitte- 
more,  18  N.  J.  Eq.  373 ;  Hosf  ord  v.  Nichols,  1  Paige,  220 ;  Williams 
V.  Maus,  6  Watts,  278;  Wills  v.  Cooper,  2  Ohio,  124. 

If  we  are  correct  in  our  premises,  it  necessarily  follows,  as  a  con- 
clusion, that  under  the  laws  of  Kansas  there  was  no  trust  created  by 
law  in  the  Kansas  land,  even  if  it  be  said  that  Mrs.  Priest  furnished 
the  consideration  paid  for  the  land,  because  there  was  no  agreement 
on  the  part  of  the  defendant  that  he  should  hold  the  title  in  trust  for 
his  wife.     .     . 


LONG  V.  MECHEM. 

(Supreme  Court  of  Alabama,  1904,  142  Ala.  405,  38  So.  262.) 

Simpson,  J.  This  is  an  appeal  from  an  interlocutory  decree  over- 
ruling demurrers  and  a  plea.  The  original  bill  was  filed  to  remove  a 
cloud  from  the  title  of  complainant,  and  was  afterwards  amended  by 
adding  a  section  setting  up  a  resulting  trust,  but  making  no  additional 
prayer. 

The  first  assignment  of  error  is  based  on  the  overruling  of  the  plea ; 
the  substance  of  the  plea  being  that  the  trust  set  up  in  the  amended 
bill  was  not  in  writing,  and  consequently  void,  under  section  1041  of 
the  Code  of  Alabama  of  1896.  The  allegations  of  the  amended  bill 
show  that  the  land  in  question  was  bought  and  paid  for  by  the  com- 
plainant, and  the  title  taken  in  the  name  of  one  Duncan,  under  an 
agreement  that  Duncan  was  to  hold  the  legal  title  for  complainant, 
and  to  convey  the  land,  whenever  desired,  under  complainant's  direc- 


Cii.  5)  EESUi/rmo  and  constructive  trust.  83 

tion.    The  contention  of  the  respondent  is  that  the  fact  that  there  was 
a  parol  agreement  in  regard  to  said  trust  takes  it  out  of  the  category 
of  resulting  trusts,  and  that  it  is  therefore  void.     If  the  complainant 
had  a  resulting  trust  in  the  lands,  from  having  paid  the  purchase  money 
and  placed  the  title  in  the  name  of  another,  the;  mere  fact  that  the  party 
in  whom  the  legal  title  was  vested  recognized  by  parol  the  obligation 
to  hold  the  land  in  trust  certainly  could  not  destroy  the  resulting  trust 
held  by  the  complainant  by  operation  of  law.     In  addition  to  this,  the 
section  of  the  Code  provides  that  no  trust  in  lands  not  in  writing  is 
valid,  "except  such  as  results  by  implication  or  construction  of  law, 
or  which  may  be  transferred  or  extinguished  by  operation  of   law." 
The  inevitable  result  from  the  grammatical  construction  of  the  sentence 
is  that  this  class  of  trusts  is  excepted  entirely  from  the  operation  of 
the  section,  and  parol  declarations  of  the  parties  regarding  the  same 
are  admissible.     The  distinction  between  this  case  and  such  cases  as 
Patton  V.  Beecher  et  al.,  62  Ala.  579,  and  Brock  v.  Brock,  90  Ala.  86, 
8  South  11,  9  L.  R.  A.  287,  is  that  these  cases  correctly  hold  that  the 
"mere  verbal  promise  by  the  grantee  of  a  deed  for  land,  absolute  on 
its  face,"  will  not  take  it  out  of  the  requirements  of  the  statute,  while 
this  case  comes  under  another  principle  of  law,  equally  well  established, 
and  recognized  in  the  exception  contained  in  the  statute  under  con- 
sideration, to  wit,  that  "if  the  purchaser  of  lands,  paying  the  purchase 
money,  takes  the  conveyance  in  the  name  of  another,  the  trust  of  the 
lands  results  by  construction  to  him  from  whom  the  purchase  money 
moves."  Lehman  et  al  v.  Lewis,  62  Ala.  129,  131 ;  Tillman  v.  Murrell 
et  al.,  120  Ala.  239,  24  South,  712.     It  is  true  that  in  the  last-named 
case,  as  counsel  for  appellant  say,  the  lands  had  been  conveyed  in  ac- 
cordance with  the  parol  agreement ;  but  the  case  was   decided  dis- 
tinctly on  the  principle  that  Murrell  held  the  legal  title  in  trust  for  the 
party  who  paid  the  money  for  it,  "not  by  virtue  of  the  parol  agreement, 
but  because  of  their  having  paid  the  consideration."     .     .     . 


ROSSOW  V.  PETERS. 

(Supreme  Court  of  Illinois,  1917,  277  111.,  436,  115  N.  E.  524.) 

Farmer,  J.     This  is  a  bill  in  chancery  filed  by  John  Rossow  to  de- 
clare him  to  be  the  equitable  owner  of  a  house  and  lot  in  Chebansc, 


84  TRUSTS.  (Part  2 

Illinois,  and  to  compel  the  defendant  William  G.  Peters,  who  held  the 
legal  title,  to  convey  the  premises  to  complainant.  The  bill  was  filed 
in  October,  1915.  Rossow  died  in  January,  1916,  before  the  cause  was 
heard,  leaving  a  last  will  and  testament,  making  his  widow,  Sophia  M. 
Rossow,  sole  beneficiary  and  executrix  of  his  will.  After  his  death 
she  was  substituted  as  party  complainant. 

John  Rossow  was  the  father-in-law  of  Peters,  whose  wife  was  Ros- 
sow's  only  child.  At  the  time  of  his  death  Rossow  was  seventy  or 
more  years  of  age.  He  was  an  ignorant,  illiterate  man  and  for  some 
years  had  been  an  employee  of  his  son-in-law.  In  March,  1906,  he 
contracted  for  the  purchase  of  a  house  and  lot  in  Chebanse  for  a  con- 
sideration of  $1300  and  paid  $100  in  cash.  He  and  his  wife  moved 
into  the  property  before  the  deed  was  made,  March  17,  1906.  He  lived 
in  the  property  with  his  wife  until  her  death  and  continued  to  occupy 
it  until  August,  1914,  when  he  married  again  and  went  to  live  in 
property  owned  by  his  wife.  The  bill  alleges  that  the  deed  to  the 
property  Rossow  purchased  was  made  to  his  son-in-law  without  Ros- 
sow's  knowledge.  This  is  denied  by  the  answer.  The  defense  set 
up  by  the  ansewer  is  that  Rossow  had  creditors,  and  that  he  had  the 
deed  made  to  his  son-in-law  to  defraud  his  creditors.  .  .  .  The 
only  creditor  the  proof  tended  to  show  Rossow  had  was  a  man  named 
Steifel,  to  whom  he  owed  $200,  and  Rossow  testified  he  paid  him  off 
some  years  before  his  deposition  was  taken. 

If  it  be  conceded  that  it  was  proven  by  competent  testimony  that 
Rossow  said  he  had  the  deed  made  to  Peters  to  hinder  and  delay  his 
creditors,  was  it,  in  fact,  a  fraud?  The  bill  alleged,  and  the  proof  sus- 
tains the  allegation,  that  Rossow  resided  in  the  property  as  his  home- 
stead from  about  the  first  of  March,  1906,  (which  was  before  the  deed 
was  made.)  until  August,  1914,  and  that  since  leaving  it  he  had  col- 
lected the  rents  from  it.  He  paid  all  taxes  and  assessments  against  the 
property  from  the  time  he  bought  it  and  at  his  own  expense  made  all 
necessary  repairs.  He  was  entitled  to  a  homestead  to  the  extent  in 
value  of  $1000,  which  creditors  could  not  take  from  him.  He  only 
put  $900  cash  into  the  property  at  the  time  he  bought  it.  A  homestead 
of  the  value  of  $1000  is  exempt  from  sale  for  the  payment  of  debts, 
and  the  owner  of  it  may  convey  it  without  interference  from  his 
creditors.  When  the  deed  was  made  Rossow's  interest  was  not  liable 
to  creditors,  and  if  Rossow  had  taken  the  title  in  his  own  name  he 


Ch.    5)  RESULTING  AND    CONSTRUCTIVE    TRUST.  85 

could  have  conveyed  it  fixe  from  their  interference.  Whatever  he 
mav  have  thought  about  it,  he  did  not  defraud  creditors  bv  havin?  the 
deed  made  to  Peters. 

Cases  involving  conveyances  made  to  defraud  or  hinder  and  delay 
creditors  have  usually  been  suits  begun  by  the  creditor,  and  in  all  such 
cases  it  has  been  held  a  conveyance  of  property  exempt  from  the  pay- 
ment of  debts  is  not  fraudulent  as  to  creditors.  A  creditor  has  no 
interest  in  the  disposition  of  such  property  and  is  not  hindered  or  de- 
layed by  its  conveyance.  Washburn  v.  Goodheart,  88  111.  229;  Moore 
V.  Flynn,  135  id.  74;  Nance  v.  Xance,  5  x-\m.  St.  Rep.  378;  Bogan  v. 
Cleveland,  20  id.  158.)  Even  the  fraudulent  acts  of  the  party  entitled 
to  a  homestead  are  not  allowed  to  divest  that  right.  (Gruhn  v.  Richard- 
son, 128  111.  178.)  That  can  only  be  accomplished  in  the  manner  pro- 
vided by  statute.  (Leupold  v.  Krause,  95  111.  440;  Hamby  v.  Lane, 
89  Am.  St.  Rep.  967.)  "A  debtor,  in  the  disposition  of  his  property, 
can  commit  a  fraud  upon  his  creditors  only  by  disposing  of  such  of 
his  property  as  the  creditors  may  have  the  legal  right  to  look  to  for 
the  satisfaction  of  their  claims,  and  therefore  a  debtor  cannot  com- 
mit a  fraud  upon  his  creditors  by  disposing  of  his  homestead."  (20  Cyc. 
385.)  The  most  that  can  be  claimed  for  the  proof  here  is,  that  Ros- 
sow  had  one  creditor  to  whom  he  owed  $200  at  the  time  and  that  he 
had  the  property  conveyed  to  his  son-in-law  for  that  reason.  The 
property,  at  the  time  of  the  conveyance,  being  exempt  from  the  claim 
of  creditors,  they  had  no  interest  in  it  and  were  in  no  way  injured  or 
defrauded  by  it. 

It  may  be  said  Rosso w  intended  by  the  conveyance  to  defraud  his 
creditor,  and  although  that  was  not  its  effect  he  cannot  compel  a  re- 
conveyance. In  other  words,  that  a  conveyance  made  with  intent  to 
defraud  creditors,  although  the  conveyance  was  of  property  exempt 
from  the  claims  of  creditors,  and  was  therefore  no  fraud  upon  them, 
can  no  more  be  set  aside  and  the  grantor  invested  with  the  title  than 
if  the  transaction  had  operated  to  defraud  or  In'nder  and  delay  creditors. 
On  this  question  the  cases  are  conflicting.  "Some  decisions  hold  that 
such  conveyance  is  fraudulent  and  the  property  cainiot  be  recovered  by 
the  grantor,  while  others  hold  that  since  none  is  harmed  but  the  grant- 
or it  .should  not  be  deemed  a  fraudulent  conveyance  and  he  should  be 
permitted  to  recover  the  jjropcrty  so  conveyed."  (12  R.  C.  L.  611.) 
The  decisions  will  be  found  collected  in  a  note  to  Carson  v.  l>eliles, 


86  TRUSTS.  (Part  2 

1  L.  R.  A.  (N.  S.)  1007.  As  to  a  debtor's  homestead  there  are  no 
creditors  and  there  can  be  no  fraudulent  disposition  of  it.  (Ferguson 
V.  Little  Rock  Trust  Co.  99  Ark.  45;  Ann.  Cas.  1913a,  960.)  The 
obvious  reasons  for  this  rule  against  the  grantor  attacking  a  convey- 
ance made  by  him  in  fraud  of  the  rights  of  creditors  do  not  obtain 
where  no  creditors  or  third  persons  are  injured  or  defrauded,  and  under 
the  circumstances  of  this  case  as  disclosed  by  the  proof  we  think  the 
rule  cannot  be  invoked  against  the  relief  prayed  for  in  the  bill.     .     .     . 


Mcdonough  v.  o'niel. 

(Supreme   Court  of   Massachusetts,    1873,   113   Mass.   92.) 

Gray,  C.  J.  The  decision  of  this  case  depends  upon  the  application 
to  the  evidence  of  well  settled  rules  of  equity  jurisprudence. 

Where  land  conveyed  by  one  person  to  another  is  paid  for  with  the 
money  of  a  third,  a  trust  results  to  the  latter,  which  is  not  within  the 
statute  of  frauds.  It  is  sufficient  if  the  purchase  money  was  lent  to 
him  by  the  grantee,  provided  the  loan  is  clearly  proved.  And  the 
grantee's  admissions,  like  other  parol  evidence,  though  not  competent 
in  direct  proof  of  the  trust,  are  yet  admissible  to  show  that  the  purchase 
money,  by  reason  of  such  a  loan  or  otherwise,  was  the  money  of  the  al- 
leged cestui  que  trust.  Kendall  v.  Mann,  11  Allen,  15  Blodgett  v.  Hil- 
dreth,  103  Mass.  484.  Jackson  v.  Stevens,  108  Mass.  94.  In  equity,  a 
conveyance  absolute  on  its  face  may  be  shown  by  parol  evidence  to  have 
been  intended  as  a  mortgage  only,  and  its  effect  limited  accordingly. 
Campbell  v.  Dearborn,  109  Mass.  130.  The  findings  of  a  master  in 
matters  of  fact  are  not  to  be  reviewed  by  the  court,  unless  clearly 
shown  to  be  erroneous.  Dean  v.  Emerson,  102  Mass.  480.  And  in 
equity,  as  at  law,  the  omission  of  a  party  to  testify  in  control  or  ex- 
planation of  testimony  given  by  others  in  his  presence  is  a  proper 
subject  of  consideration.    Whitney  v.  Bayley,  4  Allen,  173. 

It  appears  and  is  not  controverted  that  the  deed  was  made  by  God- 
frey to  the  defendant,  whose  wife  was  the  testator's  sister:  that  the 
purchase  money  $3000,  of  which  the  testator  furnished  $300  of  his 
own  money,  and  $200  borrowed  by  him  of  Mrs.  McGovern,  upon  a 
note  signed  by  himself  and  the  defendant;  the  defendant   furnished 


Cll.    5)  RESULTING  AND    CONSTRUCTIVE    TRUST.  87 

$600  of  his  own  money,  and  $400  borrowed  of  Dolan  upon  the  de- 
fendant's note;  and  for  the  remaining  $1500  the  defendant  gave  his 
own  note,  secured  by  mortgage  on  the  premises,  to  Clements,  who  held 
a  previous  mortgage  for  a  like  amount,  and  who  testified  that  before 
the  purchase  the  defendant  came  to  see  if  that  mortgage  could  lie  on 
the  property,  and  told  him  that  he  was  going  to  buy  the  land  for  the 
testator,. and  was  told  by  the  mortgagee  that  he  must  give  a  new  mortg- 
age, as  he  afterward  did,  in  discharge  of  the  old  one.  The  will  recites 
that  the  defendant  held  a  deed  of  certain  real  estate  in  trust  for  the 
testator's  benefit,  and  had  paid  certain  sums  of  money  on  his  account, 
and  directs  that  all  such  sums  of  money,  with  interest,  should  be  paid 
back  to  him,  and  he  should  then  convey  the  property  in  fee  to  the  testa- 
tor's wife.  The  attorney  who  drew  the  will  certifies  that  he  read  this 
part  of  it  in  the  testator's  presence,  and  before  its  execution,  to  the 
defendant,  and  asked  him  if  it  was  right,  and  he  said  it  was,  and  upon 
being  asked  what  claims  he  had  against  the  place,  answered  $600,  be- 
sides $100  for  repairs  and  $44.08  for  taxes,  and  that  he  had  received 
from  the  testator  the  whole  amount  with  interest  of  the  note  to  Dolan, 
except  $80,  and  that  the  testator  had  paid  the  note  to  Mrs.  McGovern. 
The  other  material  testimony  may  be  taken  as  stated  on  the  defendant's 
brief,  namely,  that  the  defendant  repeatedly  "admitted  that  he  bought 
the  place  for  John  B.  McDonough  and  that  he  meant  to  assist  or  help 
him;"  that  "the  defendant  said  McDonough  wanted  him  to  buy  the 
place  for  him,"  "that  he  had  always  wanted  John  to  take  the  deed, 
but  he  had  not  paid  up ;"  and  "that  he  was  ready  to  fix  up  the  place 
when  McDonough  was  ready  to  pay  up."  The  master  also  reports 
that  the  defendant  was  present  at  the  hearing  before  him  but  did  not 
ofifer  to  testify. 

From  this  evidence  the  master,  who  heard  all  the  witnessess,  was 
warranted  in  finding  as  matter  of  feict  that  the  money  paid  by  the  de- 
fendant for  the  land  was  lent  by  him  to  the  plaintiff  for  the  purpose, 
and  that  thus  the  whole  purchase  money  was  the  plaintiff's  money. 
Upon  examination  of  the  whole  evidence,  we  see  no  sufficient  cause 
for  reversing  the  conclusion  of  the  master,  and  taking  the  facts  as 
found  by  him  ;  the  inference  of  law  follows  that  there  was  a  resulting 
trust  in  favor  of  the  testator,  and  that  there  must  be  a  decree  for  the 
plaintiff. 


88  TRUSTS.  ^Part  2 


CARTWRIGHT  v.  WISE. 

(Supreme  Court  of  Illinois,  1853,  14  111.  417.) 

Caton,  J.  .  .  The  question  then  arises,  whether  a  father, 
who  purchases  land  with  his  own  money,  and  takes  the  title  to  his 
idiot  son.  can  file  a  bill  for  a  resulting  trust,  and  claim  that  he  did  not 
intend  it  for  the  benefit  of  his  son,  but  for  his  own  use?  We  are 
prepared  to  say  that  such  a  bill  cannot  be  sustained.  It  must  be  held 
to  be  an  advancement  in  favor  of  the  child,  (Taylor  v.  Taylor,  4  Gil. 
R.  304;  Bay  v.  Cook,  31  111.  R.  345.).  The  policy  of  the  law  requires 
that  such  advancement  thus  made  to  such  a  party,  should  be  held  to  be 
irrevocable  by  the  father.  A  contrary  rule  would  open  too  wide  a  door 
for  the  revocation  of  advancements  to  those  who  have  such  a  peculiar 
claim  upon  the  bounty  and  protection  of  a  father.  The  very  idea  of 
selecting  an  idiot  for  a  trustee,  is  absurd.  He  must  be  incapable  of 
executing  or  discharging  any  duty  in  relation  to  it;  and  the  very 
suggestion  indicates  insanity,  or  a  contemplated  fraud  on  the  part  of 
the  father. 

Let  the  decree  be  affirmed. 


HALL.v.  HALL. 

(Supreme  Court  of  Missouri,  1891,  107  Mo.  101,  17  S.  W.  811.) 

Macfarlane,  J.  The  petition  contains  two  counts.  The  first  is 
ejectment  to  recover  about  twenty-eight  acres  of  land  in  Andrew 
county.  The  second  is  in  equity,  in  which  plaintitf  alleges  that  de- 
fendant is  his  father,  and  on  the  sixth  day  of  January,  1866,  plaintiiT 
was  an  infant  living  with  him  and  in  his  family ;  that  on  said  day  one 
Beecraft  conveyed  to  plaintifif  the  land  in  controversy  by  good  and 
sufificient  deed,  which  was  delivered  to  defendant,  who  took  the  same 
into  his  possession  to  keep  and  hold  for  plaintifif;  that  afterwards 
defendant  fraudulently,  and  without  the  knowledge  or  consent  of 
plaintifif,  erased  the  name  of  plaintifif  as  grantee  therein  and  inserted 


Cll.    5)  EESULTI^^G  AND    CONSTRUCTIVE    TRUST.  89 

his  own,  and  had  the  deed  as  so  changed,  recorded;  that  the  deed,  as 
recorded,  constituted  a  cloud  upon  plaintiff's  title.  The  prayer  was 
that  the  cloud  be  removed  and  plaintiff's  title  be  decreed. 

The  answer  was  a  general  denial,  and  a  special  defense  in  which  it 
was  set  up  that  defendant  paid  the  full  amount  of  the  purchase  price 
for  the  land,  a  part  of  which  belonged  to  his  brother,  Jesse  Hall  who 
was  then  absent  from  the  state ;  that  he  bought  the  land  for  his  own 
use  and  benefit ;  that  he  had  lived  on  it,  making  it  his  home  from  the 
date  of  the  purchase  to  the  present  time ;  that  at  the  time  of  purchasing 
the  land  plaintiff  was  an  infant,  under  two  years  of  age,  paid  no  part 
of  the  purchase  money,  and  no  deed  was  made  to  him  or  for  his  bene- 
fit.   The  case  was  tried  to  the  court  without  a  jury. 

The  evidence  shows  a  state  of  facts  that  do  not  commend  plaintiff 
for  his  filial  regard  for  his  father.  It  shows  that  for  some  years  prior 
to  the  date  of  this  deed  defendant  had  lived  on  this  small  tract  of  land 
presumably  as  a  tenant;  that  on  that  day  he  bought  the  land  from  Bee- 
craft,  for  which  he  paid  him  $560,  which  appears  to  have  been  about 
all  his  possessions.  \\'hen  the  deed  was  written,  defendant  directed 
the  writer  to  insert  the  name  of  Jesse  Hall  as  grantee  therein.  This 
was  done,  and  the  deed  delivered  to  defendant,  who  retained  it  until 
about  1870,  when  he  erased  the  name  Jesse,  and  inserted  instead  that 
of  John,  thus  making  himself  the  grantee.  A  few  years  thereafter 
he  had  the  deed  recorded.  From  the  date  of  the  deed  in  1866  to  the 
commencement  of  this  suit  he  occupied  and  used  the  land  as  his  home- 
stead, made  improvements,  and  paid  the  taxes  thereon. 

These  facts  arc  substantially  undisputed.  Plaintiff  testified  that 
prior  to  1860,  himself  and  his  brother  Jesse  had  worked  together 
dividing  the  earnings;  that  his  brother  left  home  in  1860,  leaving  in 
his  hands  some  property,  the  proceeds  of  which  constituted  a  part  of 
the  consideration  paid  for  the  land,  and  on  that  account  he  had  the 
deed  made  to  him  in  order  to  secure  this  money ;  that  hearing  of  the 
previous  death  of  his  brother  he  changed  the  deed.  The  evidence, 
however,  that  the  deed  was  deliberately  made  to  the  plainiiff,  then 
under  two  years  of  age,  we  think  greatly  preponderated. 

The  court  gave  some  and  refused  other  declarations  of  law,  but 
as  the  defense  was  equitable  the  legal  questions  can  be  considered 
without  setting  out  in  detail  these  instructions.  The  court  gave  one 
intended  to  make  the  deed  to  his  brother  Jesse  1  lall,  ihc  fmding  should 


90  TEUSTS.  (Part  2 

be  for  defendant ;  and  refused  one  asked  by  the  defendant  to  the  effect 
him.  The  court  also  gave  a  declaration  that,  if  the  deed  was  not  made 
to  plaintifif  as  an  advancement,  he  could  not  recover.  The  verdict 
and  judgment  were  for  plaintiff  and  defendant  appealed.     .     .     . 

The  deed  in  question  was  unconditional  in  its  terms,  and,  at  the 
time  it  was  executed  and  given  into  the  hands  of  defendant,  plaintiff 
was  less  than  two  years  of  age,  and  was  wholly  without  discretion, 
either  to  accept  or  reject  it.  Under  such  circumstances  the  deed  being 
declaration  of  law  to  the  effect  that,  if  the  defendant  at  the  time 
beneficial  to  the  infant,  the  rule  is  almost  universal  that  the  acceptance 
that  the  evidence  failed  to  show  such  a  delivery  of  the  deed  to  or  for 
the  benefit  of  plaintiff  as  was  necessary  in  order  to  vest  the  title  in 
will  be  presumed.     .     .     . 

The  conclusion  being  irresistible  that  the  deed  was  intended,  by 
both  the  grantor  and  defendant  who  paid  the  purchase  money,  to 
operate  as  a  transfer  of  the  title  to  plaintiff,  the  next  inquiry  is  whether 
it  operated  as  a  fee-simple  conveyance  and  as  an  advancement,  or  was 
there  a  resulting  trust  in  favor  of  defendant.  The  rule  is  that  where 
one  pays  the  purchase  money,  but  the  title  is  taken  in  the  name  of  a 
stranger,  the  party  taking  the  legal  title  will,  under  certain  circum- 
stances, hold  the  title  in  trust  for  him  who  paid  for  the  land.  The  pre- 
sumption of  a  resulting  trust  in  favor  of  the  purchaser  is  rebutted 
in  case  the  conveyance  is  made,  under  like  circumstances,  to  one  to 
whom  he  is  under  some  moral  or  legal  obligation,  as  wife  or  child. 
In  such  case  the  conveyance  will  be  taken  to  have  been  intended  as  an 
advancement.  Barrier  v.  Barrier,  58  Mo.  226;  Whitten  v.  Whitten, 
3  Cush.  191 ;  2  Story,  Eq.,  sec.  1201. 

This  rebutter  of  the  presumption  of  a  resulting  trust,  arising 
from  the  relation  of  the  parties  to  each  other,  will  itself  be  overcome 
when  all  the  facts  and  circumstances  antecedent  to,  or  contemporane- 
ous with,  the  transaction  point  clearly  to  an  intention  on  the  part  of 
the  purchaser  to  create  a  trust.  Barrier  v.  Barrier,  supra;  Peer  v. 
Peer,  11  N.  J.  Eq.  432;  Persons  v.  Persons,  25  N.  J.  Eq.  250;  Taylor 
v.  Taylor,  4  Gilm.  303;  Budley  v.  Bosworth,  10  Hump.  12;  Tremper 
V.  Barton,  18  Ohio,  418.  Whether  this  conveyance  carried  with  it  a 
resulting  trust  depended  altogether  upon  the  intention  of  defendant 
when  he  bought  the  land,  paid  the  purchase  money,  and  directed 
the  name  of  plaintiff  inserted  in  the  deed  as  grantee.     This  intention 


Cil.    5)  RESULTING  AND    CONSTRUCTIVE    TRUST.  91 

can  be  shown  by  parol  evidence  as   such  trusts  arc  not   within  the 
statutes  of  frauds.     See  authorities  supra. 

There  are  many  circumstances  which  to  our  minds  tend  strongly 
to  rebut  the  presumption  that  the  coveyance  in  this  case  was  intended 
as  an  advancement.  So  far  as  appears  from  the  record  this  was  the 
bulk  of  the  property  owned  by  defendant  at  the  time;  a  part  of  the 
money  used  belonged  to  his  brother;  he  had  lived  on  this  little 
tract  previously,  and  evidently  bought  it  for  a  home  for  himself 
and  family,  and  no  provision  was  made  for  hi.s  wife  or  other  members 
of  his  family.  The  disposition  of  all  his  property  for  the  benefit  of  one 
child  is  not  consonant  with  common  sense  or  common  justice.  If  the 
conveyance  was  intended  to  carry  with  it  a  trust  in  favor  of  plaintiff 
it  could  make  but  little  difference  whether  the  deed  was  made  to 
brother,  or  son  of  defendant.  The  principal  difference  would  be  in  the 
fact  that  the  burden  of  proof,  to  establish  the  trust  in  the  child, 
would  rest  upon  defendant,  while  a  presumption  of  a  trust  would 
exist  if  the  legal  title  had  been  taken  in  the  brother.     .     .     . 

It  is  true  a  declaration  of  law  was  given  submitting  the  question 
of  fact,  as  to  whether  the  deed  was  made  to  plaintiff  by  direction 
of  defendant,  with  the  intention  of  having  it  treated  as  an  advancement, 
but  we  think  one  should  also  have  been  given  on  the  hypothesis  that 
the  deed  created  a  trust  in  favor  of  defendant.  The  first  instruction 
asked  by  defendant  was  doubtless  intended  to  submit  that  theory  of  the 
defense,  but  omitted  the  vital  and  controlling  fact  as  to  the  intent 
of  the  purchaser,  and  was  properly  refused.     .     .     . 


IN  RE  DAVIS. 
(United  States  District  Court,  1901,  112  Fed.  129.) 

Lowell,  D.  J.  I  find  the  facts  in  this  case,  to  be  as  follows:  Mrs. 
Sullivan  paid  the  entire  original  consideration  for  the  property  and 
since  the  purchase  has  paid  off  mortgages  thereon  to  the  amount  of 
$1,600.  She  never  intended  to  take  by  the  conveyance  any  title  to  the 
property,  legal  or  equitable.  Had  she  so  intended,  there  was  nothing 
to  prevent  her  from  substituting  her  name  for  her  daughter's  in  the 
deed  as  prepared,  which  could  have  been  don-  without  expense.     She 


92  TRUSTS.  (Part  2 

intended  the  entire  equitable  estate  for  her  grandchildren's  benefit 
especially  for  their  education.  She  never  intended  her  daughter  to  take 
any  beneficial  interest  in  the  property.  ...  I  have  to  determine 
whether  a  trust  results  in  favor  of  the  person  paying  the  consideration 
when  that  person  distinctly  intended  that  the  entire  beneficial  interest 
in  the  property  should  vest  in  another  not  the  grantee,  and  intended 
that  no  interest,  legal  or  beneficial,  should  vest  in  herself.  Where  one 
pays  the  consideration  for  real  estate  and  the  title  is  taken  in  another, 
a  trust  in  favor  of  the  one  paying  the  consideration  is  presumed  to 
result.  If  the  grantee  is  a  child,  a  counter  presumption  arises.  But 
none  of  these  presumptions  are  conclusive,  and  are  all  controlled  by 
the  circumstances  of  the  particular  case. 

The  doctrine  of  a  resulting  trust  in  favor  of  the  person  paying  the 
purchase  money  of  an  estate  is  stated  in  Anonymous,  2  Vent.  361 
(in  1  Vern.  366,  the  case  is  named  Bird  v.  Blosse)  : 

"Where  a  man  buys  land  in  another's  name,  and  pays  the  money,  it  will  be 
in  trust  for  him  that  pays  the  money  though  no  deed  declaring  the  trust,  for 
the  statute  of  29  Car.  II.,  called  the  'Statute  of  Frauds,'  doth  not  extend  to 
trusts  raised  by  operation  of  law." 

A  century  later  Lord  Chief  Baron  Eyre  thus  explained  the  doctrine 
in  the  opinion  of  the  court  of  exchequer : 

"The  clear  result  of  all  the  cases,  without  a  single  exception,  is,  that  the 
trust  of  a  legal  estate,  whether  freehold,  copyhold,  or  leasehold;  whether 
taken  in  the  names  of  the  purchaser  and  others  jointly,  or  in  the  name  of 
others  without  that  of  the  purchaser;  whether  in  one  name  or  several;  whether 
jointly  or  successive,— results  to  the  man  who  advances  the  purchase  money. 
This  is  a  general  proposition,  supported  by  all  the  cases,  and  there  is  nothing 
to  contradict  it;  and  it  goes  on  a  strict  analogy  to  the  rule  of  the  common 
law  that,  where  a  feoffment  is  made  without  consideration,  the  use  results  to 
the  feoffor."  Dyer  v.  Dyer,  2  Cox,  92,  93,  1  White  &  T.  Lead.  Cas.  Eq.  203, 
205. 

The  trust  is  presumed  to  result  from  the  circumstance  of  payment 

alone.    It  results,  even  if  the  grantee  had  no  notice  of  the  conveyance, 

and  though  he  made  no  agreement,  oral  or  written,  to  hold  the  estate 

in  trust.     To  create  the  trust,  there  need  be  nothing  savoring  of  fraud 

or  misrepresentation  or  mistake.     The  trust  is  not  fastened  upon  the 

conscience  of  the  legal  owner  by  an  action  or  iiiaction  of  his.     It  arises, 

as  is  said  in  the  statute  of   frauds,  by  operation  of  law.     The  trust 

may  arise  in  an  aliquot  part  of  the  property  conveyed,  or  in  an  estate 

therein  less  than  a  fee  simple.    The  nature  and  extent  of  the  beneficial 

interest  which  passes  to  the  person  paying  the  purchase  money  may  be 


Cll.    5)  RESULTING  AXD     COXSTRUCTIVE     TRUST.  93 

shown  by  parol.     The  trust  in  favor  of  the  purchaser  which  is  pre- 
sumed to  result  may  itself  be  rebutted  by  parol. 

The  trust  in  favor  of  the  grandchildren  which  was  intended  by  Mrs. 
vSullivan  is  enforceable  against  Mrs.  Davis  or  it  is  not.  Let  us  suppose 
that  it  cannot  be  enforced.  From  the  paymen:  of  the  purchase  money 
by  Mrs.  Sullivan  a  trust  is  presumed  to  result  in  her  favor.  I  low  does 
the  trustee  in  bankruptcy  of  Mrs.  Davis  seek  to  rebut  this  presump- 
tion? Mrs.  Davis  is  Mrs.  Sullivan's  daughter  and  from  some  re- 
lations a  rebutting  counter  presumption  arises  in  favor  of  the  grantee. 
It  is  doubtful,  however,  if  this  counter  presumption  arises  from  the 
relation  of  mother  and  daughter.  See  Murphy  v.  Nathans,  46  Pa. 
508 ;  Sayre  v.  Hughes,  L.  R.  5  Eq.  376 ;  Johnson  v.  Wyatt,  2  De  Gex, 
J.  &  S.  18;  Bennet  v.  Bennet,  10  Ch.  Div.  474;  In  re  Orme,  50  Law  T. 
(N.  S.)  51.  In  any  case  the  counter  presumption  in  favor  of  a  grantee 
who  is  the  child  of  the  purchaser  even  where  it  exists,  "is  not  a  pre- 
sumption of  law,  but  of  fact,  and  can  be  overthrown  by  proof  of  the 
real  intent  of  the  parties."  Institution  v.  Meech,  169  U.  S.  398,  407, 
18  Sup.  Ct.  396,  400,  42  L.  Ed.  793,  798.  "The  circumstance  of  one 
or  more  of  the  nominees  being  a  child  or  children  of  the  purchaser  is  to 
operate  by  rebutting  the  resulting  trust ;  and  it  has  been  determined 
in  so  many  cases  that  the  nomiee,  being  a  child,  shall  have  such  opera- 
tion as  a  circumstance  of  evidence,  that  we  should  be  disturbing  land- 
marks if  we  suffered  either  of  these  propositions  to  be  called  in  ques- 
tion, namely,  that  such  circumstance  shall  rebut  the  resulting  trust, 
and  that  it  shall  do  so  as  a  circumstance  of  evidence."  "Considering 
it  as  a  circumstance  of  evidence,  there  must  be,  of  course,  evidence 
admitted  on  the  other  side."  Dyer  v.  Dyer,  above  cited.  As  it  is 
abundantly  clear  that  Mrs.  Davis  was  intended  to  take  no  beneficial 
interest  in  the  estate,  her  relation  to  Mrs.  »Sullivan  is  unimporlant, 
and  the  case  must  be  decided  as  if  she  were  a  stranger  in  blood.  The 
trustee  thus  stands  in  the  place  of  a  grantee  who  seeks  to  rebut  the 
presumption  that  the  trust  results  to  the  purchaser,  and  seeks  to  do  so 
by  showing  that  a  trust  was  intended  in  f.avor  of  a  third  person,  which 
trust  is  not  enforceable  against  the  grantee.  The  grantee  thus 
claims  the  entire  beneficial  interest  in  the  estate,  of  which  she  would 
otherwise  have  taken  nothing,  by  showing  that  a  bcnencial  interest 
was  intended  in  some  one  else.  She  claims  a  bt'nclicial  interest  in 
property   because   of    the   expressed    intent    llial    she   should   take   no 


04  TRUSTS.  (Part  2 

beneficial  interest  therein.  If  the  purchaser  had  said  nothing,  the 
grantee  would  have  taken  nothing.  Because  the  purchaser  has  said 
that  the  grantee  is  to  take  nothing,  the  grantee  claims  to  take  every- 
thing.   This  does  not  appear  to  be  equitable.     .     .     . 

Again,  it  is  settled  that,  upon  an  oral  declaration  by  the  purchaser 
that  the  grantee  is  to  take  the  beneficial  interest  in  part  of  the  estate 
he  will  do  so,  and  the  beneficial  interest  in  the  remaining  part  will  pass 
by  way  of  resulting  trust  to  the  purchaser.  The  expression  by  the 
purchaser  of  an  intention  that  the  grantee  shall  take  only  a  part,  causes 
a  trust  in  the  rest  of  the  estate  to  resvilt.  Rider  v.  Kidder,  10  Ves. 
360;  Cook  V.  Patrick,  135  111.  499,  26  N.  E.  658,  11  L.  R.  A.  573.  Why 
should  a  declaration  that  a  grantee  is  to  take  nothing  defeat  the  re- 
sulting trust,  and  cause  him  to  take  everything?  Still  again,  it  is 
settled  that,  where  a  trust  is  validly  declared  in  only  a  part  of  the 
estate  conveyed,  the  rest  of  the  estate  will  result  to  the  purchaser; 
and  the  like  happens  where  a  trust  is  declared  in  the  whole  estate, 
but  fails  in  part.  It  is  hard  to  say  why  the  failure  of  a  valid  trust, 
once  created,  should  inure  to  the  benefit  of  the  purchaser,  while  a  fail- 
ure to  create  a  valid  trust  inures  to  the  benefit  of  the  grantee.  .  .  ; 
Let  us  suppose  that  Mrs.  Sullivan  had  become  bankrupt,  instead  of 
Mrs.  Davis,  and  that  the  trustee  of  Mrs.  Sullivan  sought  to  recover  the 
property  from  Mrs.  Davis,  while  the  latter  was  trying  to  carry  out 
the  intention  of  Mrs.  Sullivan  for  the  benefit  of  the  grandchildren. 
Even  in  that  case,  it  must  still  be  said  that  Mrs.  Sullivan's  intention 
was  not  to  rely  upon  Mrs.  Davis'  honor,  but  to  impose  on  her  a  binding 
trust.  If  that  intention  failed,  and  if  the  trust  did  not  bind  the  grantee, 
the  person  paying  the  purchase  money  would  naturally  prefer  to  take 
into  her  disposition  the  property  for  which  she  had  paid,  rather  than 
to  leave  it  altogether  in  the  disposition  of  the  nominal  grantee.  If, 
therefore,  the  trust  in  favor  of  the  grandchildren  was  not  validly  de- 
clared, there  was  a  resulting  trust  in  favor  of  Mrs.  Sullivan.     .     .     , 


GLIDEWELL  v.  SPAUGH. 

(Supreme  Court  of  Indiana,  1866,  26  Ind.  319.) 

Ray,   J.     .     .     .     The   first    section   of    "an   act   concerning  trusts 
and  powers,"   (1  G.  &  H.  651,)   provides  that  "no  trust  concerning 


Ch.    5)  RESULTING  AND    CONSTKUCTIVE    TRUST.  95 

lands,  except  such  as  may  arise  by  implication  of  law,  shall  be  created, 
unless  in  writing,  signed  by  the  party  creating  the  same,  or  by  his 
attorney,  thereto  lawfully  authorized  in  writing." 

The  sixth  section  of  the  act  declares  that  "when  a  conveyance  for 
a  valuable  consideration  is  made  to  one  person,  and  the  consideration 
therefor  is  paid  by  another,  no  use  or  trust  shall  result  in  favor  of 
the  latter;  but  the  title  shall  vest  in  the  former,  subject  to  the  pro- 
visions of  the  next  two  sections."  One  of  those  provisions,  or  rather 
exceptions  named  to  the  rule,  is  the  case  made  by  the  evidence  oflfered, 
to-wit:  "Where  it  shall  be  made  to  appear  that  by  agreement,  and 
without  any  fraudulent  intent,  the  party  to  whom  the  conveyance 
was  made,  or  in  whom  the  title  shall  vest,  was  to  hold  the  land,  or 
some  interest  therein,  in  trust  for  the  party  paying  the  purchase  money, 
or  some  part  thereof."  Without  the  statute,  the  trust  would  be  im- 
plied without  proof  of  the  agreement  to  hold  in  trust,  but  under  the 
statute,  the  trust  does  not  result,  unless  the  express  agreement  to  thus 
hold  be  superadded.     .     .     . 


CARLL  V.  EMERY. 

(Supreme  Court  of  Massachusetts,  1888,  148  Mass.  32,  18  N.  E.  574.) 

Devens,  J.  The  checks  which  were  indorsed  by  the  plaintiffs  to 
the  defendants,  for  the  proceeds  of  which  the  defendants  agreed 
to  account  to  them,  were  so  transferred,  as  the  evidence  tended  to 
show,  with  a  view  to  delay  and  defraud  the  plaintiflfs'  creditors,  and 
of  this  purpose  both  parties  were  cognizant.  At  a  subsequent  period 
the  plaintiffs  went  into  insolvency,  and  sought  to  avail  themselves  of 
the  property  for  the  purpose  of  satisfying  their  creditors  to  the  extent 
of  its  value.  For  this  purpose  they  demanded  the  proceeds  of  the 
checks  of  the  defendants,  who  were  apprised  of  the  intention  of  the 
plaintiffs,  and  of  the  object  to  which  such  proceeds  were  to  be  devoted. 
The  defendants  having  refused  this  demand,  the  plaintiffs,  who  had 
made  an  offer  of  compromise  to  their  creditors,  paid  into  the  Court 
of  Insolvency  a  sum  which  exhausted  all  their  assets,  including  the 
amount  of  the  checks  transferred  to  the  defendants'  This  sum  was 
obtained  partly  by  a  loan  made  to  them  by  one  Chase,  to  whom  they 


96  TEUSTS.  (Part  2 

assigned  their  claim  against  the  defendants  for  the  proceeds  of  the 
checks,  and  for  whose  benefit  this  action  was  brought. 

The  defendants  requested  an  instruction  to  the  jury,  that,  if  they 
were  satisfied  on  all  the  evidence  that  the  checks  were  transferred  to 
them  "in  order  to  prevent  the  plaintiffs'  creditors  from  reaching  the 
same  by  attachment  or  other  legal  means,  or  to  hinder  and  delay  said 
creditors  in  their  lawful  attempts  to  avail  themselves  of  said  checks 
or  the  proceeds  thereof  in  payment  of  their  lawful  demands,  this 
action  cannot  be  maintained."  This  request  was  refused,  and  the  jury 
was  instructed:  "If  the  jury  find  that  the  defendants  received  those 
checks  to  have  them  cashed  for  the  benefit  of  the  plaintiffs,  and  re- 
ceived the  money  therefrom,  and  the  plaintiffs  thereafter  demanded  the 
same  of  the  defendants  for  the  purpose  of  paying  a  composition  made 
in  insolvency  with  their  creditors,  of  which  purpose  the  defendants 
were  apprised,  and  the  defendants  refused  to  pay  over  said  money  to 
the  plaintiffs  or  their  order,  then  this  action  may  be  maintained,  al- 
though the  said  checks  were  originally  placed  in  the  hands  of  the 
defendants  for  collection,  in  order  to  hinder,  delay,  or  defraud  cred- 
itors." 

We  have  no  occasion  to  consider  whether  the  defendants  could 
have  been  permitted  to  defeat  the  contract  they  had  made  by  proof 
that  they  had  participated  in  a  fraud  upon  the  plaintiff's'  creditors,  or 
whether  the  transaction  described  in  the  request  was  not  valid  between 
the  parties,  and  thus  that  it  could  have  been  avoided  only  by  creditors, 
or  whether  even  creditors  could  have  avoided  it,  having  themselves 
received  the  proceeds  of  the  checks.  All  these  questions  have  been  re- 
peatedly considered  by  this  court.  Knapp  v.  Lee,  3  Pick,  452 ;  Dyer  v. 
Homer,  22  Pick.  253 ;  Oriental  Bank  v.  Raskins,  3  Met.  332 ;  Crownin- 
shield  V.  Kettridge,  7  Met  520;  Brown  v.  Thayer,  12  Gray,  1 ;  Harvey 
v.  Varney,  98  Mass.  118.  ■ 

The  instruction  as  given  was  sufficiently  favorable  to  the  defendants. 
It  was  in  substance  that  if  one  of  two  parties  to  a  transaction,  fraudu- 
lent as  to  creditors,  has  transferred  property  to  another,  no  considera- 
tion having  been  paid,  he  may  recede  from  the  transaction  on  notice  to 
the  other  party,  repossess  himself  of  his  property,  and  devote  it  to  its 
proper  purposes.  That  a  fraudulent  transaction  may  be  purged  of  the 
fraud  by  the  subsequent  action  of  the  parties  is  well  settled.  Thus,  if  the 
checks  transferred  to  the  defendants,  had  been  fully  paid  for  to  the 


Ch.    5)  EESLTLTING  AND    CONSTRUCTIVE    TRUST.  97 

plaintiffs,  and  the  sum  had  gone  to  the  plaintiffs'  creditors,  the  trans- 
action would  have  been  purged  of  fraud  and  the  defendants  would 
have  had  a  good  title  thereto.  Thomas  v.  Goodwin,  12  Mass.  140. 
Oriental  Bank  v.  Haskins,  3  Met.  332. 

It  would  seem  equally  clear,  that,  when  a  party  who  has  transferred 
property  to  delay  or  defraud  creditors  abandons  his  fraudulent  pur- 
pose, apprising  the  other  party  thereof,  and  seeks  to  reinstate  himself 
in  the  possession  of  his  property  in  order  to  pay  his  creditors,  he  may 
do  so.  It  cannot  be  that  the  other  party,  who  has  been  a  participant  in 
the  fraudulent  transaction  by  reason  of  such  participation  should  be 
able  to  hold  the  property  the  possession  of  which  he  had  so  acquired, 
and  thus  prevent  it  from  being  devoted  to  its  legitimate  uses. 

Judgment  on  the  verdict. 


IN  RE  WEST. 
(Supreme    Court    of   Judicature,    (1900)    1  Ch.  D.  84.) 

Kekewich,  J.  A  difficult  question  arises  in  this  case.  The  testa- 
trix has  given  her  real  and  personal  property  to  certain  persons  as 
trustees,  but  the  trusts  declared  do  not  exhaust  the  property.  The 
question  is  what  is  to  be  done  with  the  part  not  required  to  satisfy 
the  trusts.  It  is  impossible  to  say  that  because  property  is  given  to 
persons  as  trustees  they  therefore  take  no  beneficial  interest.'  That 
is  contrary  to  all  experience  of  the  construction  of  wills,  there  being 
many  instances  of  trustees  taking  beneficially.  Nevertheless,  there 
is  a  presumption  that  a  gift  in  trust  is  not  a  beneficial  gift.  It  is,  how- 
ever, not  uncommon  to  find  a  gift  of  a  fund  charged  with  certain 
payments,  or  coupled  with  a  condition  that  a  certain  amount  be  paid  to 
a  third  person.  Whether  the  charge  takes  effect  by  way  of  trust  or 
condition,  it  is  not  intended  to  do  more  than  give  a  certain  amount 
out  of  the  fund  to  another  person.  There  are  numerous  cases  of  that 
kind. 

In  Croome  v.  Croome  W.  N.  (1888)  37,  152;  W.  N.  (1889)  156; 
59  L.  T.  582;  61  L.  T.  814),  the  Court  of  Appeals,  besides  applying 
the  rule,  in  King  v.  Denison,  1  V.  &  B.  260;  12  R.  R.  227,  to  the  will 

2  Eq.— 7 


9vS  TRUSTS.  (Part  2 

before  them,  took  the  opportunity  of  laying  down  a  rule  in  their  own 
language. 

Cotton,  L.  J.,  says  (59  L.  T.  584,  585)  :  "I  think  Mr.  Theobald 
has  stated  the  correct  rule  to  be  applied  in  this  case,  which  is,  whether 
this  is  a  devise  for  a  particular  purpose — by  which  I  mean  for  that 
particular  purpose  only — or  whether  it  is  a  devise  subject  to  certain 
purposes  described  as  trusts  or  charges.  Thai  I  think  is  the  rule  laid 
down  by  Lord  Eldon  in  King  v.  Denison,  1  V.  &•  BJ  260;  12  R.  R.  227. 
What  he  says  is  this:  'If  I  give  to  A.  and  his  heirs  all  my  real  estate, 
charged  with  my  debts,  that  is  a  devise  to  him  for  a  particular  purpose, 
but  not  for  that  purpose  only.  If  the  devise  is  upon  trust  to  pay  my 
debts,  that  is  a  devise  for  a  particular  purpose,  and  nothing  more' — 
that  is  to  say,  exclusively  for  that  purpose — and  the  effect  of  those 
two  modes  admits  just  this  difference.  The  former  is  a  devise  of  an 
estate  of  inheritance  for  the  purpose  of  giving  the  devisee  the  beneficial 
interest  subject  to  a  particular  purpose ;  the  latter  is  a  devise  for  a 
particular  purpose,  with  no  intention  to  give  him  any  beneficial  interest. 
Where,  therefore,  the  whole  legal  interest  is  given  for  the  purpose 
of  satisfying  trusts  expressed,  and  those  trusts  do  not  in  their  execu- 
tion exhaust  the  whole,  so  much  of  the  beneficial  interest  as  is  not 
exhausted  belongs  to  the  heir."  He  means  v/here  it  is  given  for  the 
particular  purpose  only ;  but  where  it  is  given  subject  to  a  particular 
purpose,  then  what  is  not  required  for  the  purpose  of  fulfilling  that 
purpose  remains  to  /he  devisee,  it  not  being  imposed  on  him  as  a  trust 
or  as  a  charge.  It  is  very  true  that  the  charges  created  by  the  words 
of  this  will  do  extend  till  they  are  satisfied,  and  charge  the  whole 
of  the  estate,  but  that,  to  my  mind,  is  not  the  question.  Now,  in 
construing,  we  have  to  see  what  is  the  effect  of  the  words — whether 
they  create  a  devise  for  a  particular  purpose  only,  or  a  devise  subject 
to  the  performance  of  a  particular  purpose.  I  think  it  is  the  lat- 
ter."    .     .     . 

That  is  the  pith  and  marrow  of  the  whole  matter.  Are  the  donees 
in  trust  trustees  in  respect  of  the  whole  property  given,  or  only  in 
respect  of  the  part  that  is  given  to  others? 

I  have  now  to  apply  that  test  to  the  particular  will.  There  is  a 
general  devise  and  bequest  to  certain  persons  on  trust  for  sale.  Those 
words  alone  do  not  settle  the  question,  as  I  might  still  find  the  trustees 
were  intended  to  take  beneficially.     The  trust  for  sale  is  in  the  ordi- 


Cll.    5)  EESULTING  AXD    COXSTRUCTIVE    TRUST.  99' 

nary  form,  and  the  donees  contend  that  it  is  mere  machinery.  .  .  . 
But  I  cannot  look  on  that  trust  as  mere  machinery.  It  affords  a 
strong  indication  that  they  are  to  hold  the  proceeds  as  trustees  gener- 
ally. A  somewhat  finer  point  arises  on  the  direction  that  the  trustees 
shall  be  chargeable  only  with  such  moneys  as  they  actually  receive.  That 
clause  is  unnecessary,  unless  the  testatrix  contemplated  that  the  donees 
were  trustees  of  the  whole  property  given.  Then  follows  the  reimburse- 
ment clause,  shewing  that  the  testatrix  contemplated  that  the  trustees 
might  require  reimbursement  of  moneys  expended  in  the  execution 
of  their  trust.  The  trust  for  sale  and  the  indemnity  and  reimburse- 
ment clauses  hang  together,  and  show  that  the  testatrix  was  contemplat- 
ing a  complete  trust.  This  excludes  the  notion  of  the  trustees  taking 
beneficially.     .     .     . 


VAN  DER  VOLGEN  v.  YATES. 

(New  York  Court  of  Appeals,   1853,  9  N.  Y.  219.) 

On  the  27th  of  April,  1790,  Nicholas  Van  der  Volgen  owned  a  lot 
in  Schenectady,  the  land  out  of  which  this  controversy  arose.  On  that 
day,  by  indenture  of  release  reciting  that  the  releasees  were  in  posses- 
sion of  the  premises  "by  virtue  of  a  bargain  and  sale  to  them  thereof 
made  for  one  whole  year,  by  indenture  bearing  date  the  day  next  before 
the  day  of  the  date  of  these  presents,  and  by  force  of  the  statute  for 
transferring  uses  into  possession,"  and  in  consideration  of  ilOO  paid 
by  the  releasees,  he  released  the  premises  to  Robert  Alexander  and 
seven  other  persons  named,  of  whom  Joseph  C.  Yates,  the  original  de- 
fendant in  this  action,  was  one,  "and  to  their  heirs  and  assigns  for- 
ever." The  deed  then  declared  that  the  conveyance  was  "upon  trust, 
nevertheless,  to  the  only  proper  use,  benefit  and  behoof  of  Cornelius 
Van  Dyck"  and  twelve  other  persons  named,  "members  of  St.  George's 
Lodge,  in  the- town  of  Schenectady,  and  all  others  who  at  present  arc 
or  hereafter  may  become  members  of  tha  same,  their  survivors  and 
successors  forever,  and  to  and  for  no  other  use,  intent  and  jnirpose 
whatsoever."     . 

In  1797  Nicholas  Van  der  V'olgen  died,  k-aving  a  will  in  which,  not 
having  specifically  disposed  of  the  reversion  of  the  premises  in  question, 


100  TRUSTS.  (Part  2 

he  made  Lawrence  and  Petrus  Van  der  Volgen  his  residuary  devisees. 
In  1819  Petrus  died,  having  devised  all  his  estate  by  will  to  Myndert 
Van  der  Volgen ;  Lawrence  and  Myndert  being  thus  the  legal  repre- 
sentatives of  Nicholas  in  any  devisable  estate  in  the  premises  which  he 
may  have  had  at  the  time  of  his  death. 

In  1833  the  act  to  incorporate  the  Utica  and  Schenectady  Railroad 
Company  was  passed.  Under  its  authority  the  company  instituted 
proceedings  to  appropriate  the  lot  in  question  to  the  use  of  the  road. 
To  these  proceedings  Lawrence  and  Myndert  Van  der  Volgen,  Joseph 
C.  Yates,  now  the  sole  survivor  of  the  releasees  in  the  before  mentioned 
conveyance,  and  certain  persons  claiming  to  be  members  of  St.  George's 
Lodge,  were  made  parties,  all  of  the  ccstuis  que  trust  named  in  that 
instrument  being  dead.  The  commissioners  awarded  six  cents  to  the 
two  Van  der  Volgens,  and  $2755  to  Yates  "as  trustee  under  the  re- 
lease ;"  and  the  two  former  filed  their  bill  in  chancery  against  the  latter 
to  compel  the  payment  of  the  money  to  them  as  the  representatives  of 
the  releasor,  and  entitled  to  the  land  or  it:s  proceeds.  The  vice- 
chancellor  dismissed  the  bill,  and  this  decree  was  affirmed  by  the  chan- 
cellor (3  Barb.  Ch.  R.,  242.)     The  complainants  appealed  to  this  court. 

All  the  original  parties  to  the  action  had  died  since  the  commence- 
ment oi  the  suit,  and  their  personal  representatives  were  the  present 
parties. 

RuGGivES,  Ch.  J.  In  determining  this  case  it  will  be  assumed 
that  the  deed  executed  by  Nicholas  Van  der  Volgen  to  Robert  Alexan- 
der and  seven  others,  for  the  use  of  Cornelius  Van  Dyck  and  twelve 
others,  was  a  valid  conveyance  by  lease  and  release,  operating  by  force 
of  the  statute  of  uses,  to  vest  in  Van  Dyck  and  others  who  are  specially 
named  as  cestuis  que  use,  an  estate  for  their  joint  lives  and  the  life  of 
the  survivor,  but  not  an  estate  in  fee :  and  that  the  limitation  of  the 
further  use  to  "all  others  who  were  then  or  thereafter  might  become 
members  of  St.  George's  Lodge,  their  survivors  and  successors  for- 
ever," was  void  for  uncertainty ;  and  that  the  use  or  equitable  interest 
thus  attempted  to  be  given  to  the  members  of  the  lodge  not  specifically 
named,  cannot  be  sustained  either  as  a  legal  estate  by  force  of  the 
statute  of  uses,  or  as  an  executory  trust,  or  as  a  charitable  use.  Upon 
these  assumptions  the  only  remaining  question  is  whether  upon  the 
death  of  the  last  surviving  cestui  que  use  the  estate  resulted  back  to 
the  representatives  of  the  grantor,  who  are  the  complainants.  If  it 
did  so,  they  are  entitled  to  the  money  in  controversy,  otherwise  not. 


oil.    5)  RESULTING  AND    CONSTRUCTIVE    TRUST.  101 

Before  the  statute  of  uses,  and  while  uses  verc  subject  of  chancery 
jurisdiction  exclusively,  a  use  could  not  be  raised  by  deed  without  a 
sufficient  consideration ;  a  doctrine  taken  from  the  maxim  of  the  civil 
law,  ex  niido  pacto  non  oritur  actio.  In  consequence  of  this  rule  the 
court  of  chancery  would  not  compel  the  execution  of  a  use,  unless  it 
had  been  raised  for  a  good  or  valuable  consideration ;  for  that  would 
be  to  enforce  donnm  gratidtmn.  1  Cruise,  tit.  xi.  ch.  2,  §  22.)  And 
where  a  man  made  a  feoffment  to  another  without  any  consideration, 
equity  presumed  that  he  meant  it  to  the  use  cf  himself ;  unless  he  ex- 
pressly declared  it  to  be  to  the  use  of  another,  and  then  nothing  was 
presumed  contrary  to  his  own  expressions.  (2  B.  Com.,  330.)  If  a 
person  had  conveyed  his  lands  to  another  without  consideration,  or 
declaration  of  uses,  the  grantor  became  entitled  to  the  use  or  pernancy 
of  the  profits  of  the  lands  thus  conveyed. 

The  doctrine  was  not  altered  by  the  statute,  of  uses.  Therefore  it 
became  an  established  principle,  that  where  the  legal  seizin  or  posses-, 
sion  of  lands  is  transferred  by  any  common  law  conveyance  or  assur- 
ance, and  no  use  is  expressly  declared,  nor  any  consideration  or  evi- 
dence of  intent  to  direct  the  use,  such  use  shall  result  back  to  the  origi- 
nal owner  of  the  estate;  lor  where  there  is  neither  consideration  nor 
declaration  of  uses,  nor  any  circumstance  to  show  the  intention  of  the 
parties,  it  cannot  be  supposed  that  the  estate  was  intended  to  be  given 
away.     (1  Cruise,  tit.  ii.,  ch.  4,  §  20.) 

But  if  a  valuable  consideration  appears,  equity  will  immediately 
raise  a  use  correspondent  to  such  consideration.  (2  Bl.  Com.,  330.) 
And  if  in  such  case  no  use  is  expressly  declared,  the  person  to  whom 
the  legal  estate  is  conveyed,  and  from  whom  the  consideration  moved, 
will  be  entitled  to  the  use.  The  payment  ot  the  consideration  leads 
the  use,  unless  it  be  expressly  declared  to  some  other  person.  The 
use  results  to  the  original  owner  where  no  consideration  appears, 
because  it  cannot  be  supposed  that  the  estate  was  intended  to  be  given 
away ;  and  by  the  same  rule  it  \\\\\  not  result  where  a  consideration  has 
been  paid,  because  in  such  case  it  cannot  be  supposed  that  the  parties 
intended  the  land  should  go  back  to  him  who  had  been  paid  for  it. 

The  statute  of  uses  made  no  change  in  the  equitable  principles  which 
previously  governed  resulting  uses.  It  united  the  legal  and  equitable 
estates  so  that  after  the  statute  a  conveyance  of  the  use  was  a  con- 
veyance of  the  land  ;  and  the  land  will  not  result  or  revert  to  the  origi- 


102  TRUSTS.  (Part  2 

nal  owner  except  where  the  use  would  have  done  so  before  the  statute 
was  passed.     (Cruise,  tit.  x,  ch.  4,  §  20.) 

It  is  still  now,  as  it  was  before  the  statute,  "the  intention  of  the 
parties  to  be  collected  from  the  face  of  the  deed  that  gives  effect  to 
resulting  uses."     (1  Sanders  on  Uses,  104,  ed.  of  1830.) 

As  a  general  rule  it  is  true  that  where  the  owner  "for  a  pecuniary- 
consideration  conveys  lands  to  uses,  expressly  declaring  a  part  of  the 
use,  but  making  no  disposition  of  the  residue,  so  much  of  the  use  as 
the  owner  does  not  dispose  of  remains  in  him.  (Cruise,  tit.  xi,  ch.  4, 
§  21.)  For  example,  if  an  estate  be  conveyed  for  valuable  consider- 
ation to  feoffees  and  their  heirs  to  the  use  of  them  for  their  lives,  the 
remainder  of  the  use  will  result  to  the  grantor.  In  such  case  the 
intent  of  the  grantor  to  create  a  life  estate  only  and  to  withhold  the 
residue  of  the  use  is  apparent  on  the  face  of  the  deed;  the  words  of 
inheritance  in  the  conveyance  being  effectual  only  for  the  purpose  of 
serving  the  declared  use.  The  consideration  expressed  in  the  convey- 
ance is  therefore  deemed  an  equivalent  only  for  the  life  estate.  The 
residue  of  the  use  remains  in  or  results  to  the  grantor,  because  there 
was  no  grant  of  it,  nor  any  intention  to  grant  it,  and  because  it  has 
never  been  paid  for. 

But  the  general  rule  above  stated  is  clearly  inapplicable  to  a  case 
in  which  the  intention  of  the  grantor,  apparent  on  the  face  of  the 
deed,  is  to  dispose  of  the  entire  use,  or  in  other  words  of  his  whole 
estate  in  the  land.  Such  is  the  case  now  before  us  for  determination. 
The  consideration  expressed  in  Van  der  Volgen's  deed  was  ilOO; 
and  it  is  perfectly  clear  on  the  face  of  the  conveyance  that  he  intended 
to  part  with  his  whole  title  and  interest  in  the  land.  He  limited  the 
use  by  the  terms  of  his  deed  "to  Cornelius  Van  Dyck  and  twelve  other 
members  of  St.  George's  Lodge  in  the  town  of  Schenectady,  and  all 
others  who  at  present  are,  or  hereafter  may  become  members  of  the 
same,  their  survivors  and  successors  forever."  He  attempted  to  convey 
the  use  and  beneficial  interest  to  the  members  of  that  lodge  either  as  a 
corporate  body,  capable  of  taking  by  succession  forever,  or  to  that 
association  for  a  charitable  use  or  perpetuity.  In  either  case,  if  the 
conveyance  had  taken  effect  according  to  the  grantor's  intention,  it 
would  have  passed  his  whole  title,  and  no  part  of  the  use  could  have 
resulted  to  him  or  his  representatives.  Admitting  that  the  declaration 
of  the  uses  was  void  except  as  to  the  c  est  ids  que  use  who  were  specially 


Ch.    5)  RESULTING  AND    CONSTRUCTIVE    TRUST.  103 

named,  and  good  as  to  them  only  for  life,  yet  it  cannot  be  doubted 
that  the  parties  believed  when  the  deed  was  executed  that  the  grantor 
conveyed  his  whole  title  in  fee,  and  the  intention  of  the  parties  that 
the  entire  use  and  interest  of  the  grantor  should  pass,  is  as  clear  as 
if  the  limitation  of  the  whole  use  had  been  valid  and  effectual.  This 
intent  being  established  it  follows,  as  a  necessary  consequence,  that  the 
sum  of  £100  consideration  was  paid  and  received  as  an  equivalent  for 
what  was  intended  and  supposed  to  have  been  conveyed,  that  is  to  say 
for  an  estate  in  fee.  The  express  declaration  of  the  use  in  the  present 
case,  instead  of  being  presumptive  evidence  that  the  grantor  did  not 
intend  to  part  with  the  use  in  fee,  is  conclusive  evidence  that  he  did 
so  intend ;  and  the  extent  of  the  express  declaration  is  as  much  the 
measure  of  the  consideration  as  if  the  whole  of  the  declared  use  had 
been  valid.  The  complainant's  claim  to  the  resulting  use,  or  reversion 
of  the  land,  being  founded  solely  on  the  assumption  that  the  grantor 
never  was  paid  for  it,  must,  therefore,  fail  because  the  assumption  is 
disproved  by  the  deed  itself. 

A  use  never  results  against  the  intent  of  the  parties.  "Where  there 
is  any  circumstance  to  show  the  intent  of  the  parties  to  have  been 
that  the  use  should  not  result,  it  will  remain  in  the  persons  to  whom  the 
legal  estate  is  limited."  (1  Cruise,  tit.  xi,  Use,  ch.  4,  §  41.)  In  this 
case  there  are  at  least  two  such  circumstances.  They  have  already 
been  alluded  to ;  first,  the  intent  expressly  declared  to  convey  the  land 
in  fee  or  in  perpetuity  for  the  benefit  of  the  members  of  St.  George's 
Lodge.  This  effectually  repels  the  idea  of  a  resulting  use.  The  two 
intents  are  incompatible.  Secondly,  the  payment  of  the  purchase 
money,  of  which  enough  has  been  already  said. 

If  it  be  said  that  the  express  declaration  is  a  presumptive  proof 
that  the  grantor  did  not  intend  that  the  grantees  of  the  legal  estate 
should  have  that  part  of  the  use  which  was  effectually  declared,  the 
answer  is,  that  the  express  declaration  is  proof  at  least  equally  strong 
that  he  did  not  mean  that  the  use  should  result  to  himself.  Conceding 
then  that  the  intention  of  the  parties  in  regard  to  this  residue  of  the 
use  cannot  be  carried  into  effect,  the  equity  which  governs  resulting 
uses  settles  the  question  between  them.  It  gives  the  residue  to  the 
grantees  because  the  grantor  has  had  the  money  for  it,  and  the  language 
of  the  conveyance  is  sufficient  to  pass  it.  The  grantor  cannot  have  the 
purchase  money  and  the  land  also.     Payment  of  the  purchase  money 


lO-i  TRUSTS.  (Part  2 

for  the  entire  title,  vests  the  entire  use  in  the  grantees,  excepting 
only  so  much  of  it  as  may  be  effectually  declared  for  the  benefit  of 
some  other  person. 

It  has  been  assumed  that  the  use  expressed  in  favor  of  the  members 
of  St.  George's  Lodge,  not  specially  named,  was  not  valid  as  a  char- 
itable use.  But  it  was  not  necessary  to  decide  that  question.  The  de- 
cision of  this  case  must  not  be  understood  as  settling  any  question  as 
to  the  title  to  the  money  in  controversy,  except  that  no  part  of  it  be- 
longs to  the  complainants.  .  . 


HAIGH  V.  KAYE. 

(In  Chancery,  1872,  L-  R.  7  Ch.  App.  469.) 

Sir  W.  M.  James,  L.  J.  .  .  .  The  Defendant  admits  that  there 
was  a  conveyance  given  to  him  purporting  to  be  executed  in  consider- 
ation of  £850  paid  by  him  to  the  original  Plaintiff,  G.  A.  Haigh,  by 
which  he  became,  by  purchase,  owner  of  the  estate.  He  admits  that 
there  was  no  such  transaction  in  fact  as  any  sale  to  him,  but  that 
the  payment  of  the  £850  was  a  mere  form,  and  that  the  Plaintiff 
paid  the  expenses  of  the  conveyance  to  him,  or  gave  him  the  money  to 
pay  them.  That  being  so,  he  goes  on  to  admit  that  he  was  to  hold  the 
estate  upon  trust  to  pay  the  rents  and  profits  to  the  Plaintiff,  and 
when  the  Plaintiff  called  upon  him  for  a  reconveyance  he  was  to  recon- 
vey  it.  The  Plaintiff  has  called  upon  him  to  reconvey  the  estate,  and  he 
suggests  by  way  of  answer  to  that,  first  of  all  vaguely  and  faintly,  that 
this  transaction  was  not  altogether  a  straightforward  transaction;  that 
this  transaction  was  entered  into  with  a  view  to  defraud  somebody  else. 
The  Defendant  says  in  effect,  "I  am  to  remain  in  possession  of  the 
estate,  because  we  were  both  of  us  engaged  in  a  transaction  contrary 
to  the  law,  and  you  will  not  take  it  away  from  me  to  give  it  to  a  man 
who  was  as  bad  as  I  was  in  the  matter;  in  fact  it  was  an  illegal  and 
fraudulent  transaction  against  somebody  else,  and  where  there  is  an 
equal  crime  the  Court  ought  to  hold  that  in  pari  delicto  melior  est  con- 
ditio possidentis."  However  the  Defendant  has  not  raised  that  defense 
in  the  way  in  which  according  to  my  judgment,  such  a  defense  ought 
to  be  raised.    If  a  Defendant  means  to  say  that  he  claims  to  hold  prop- 


Cll.    5)  RESUI/riNG-  AND    CONSTRUCTIVE    TRUST.  105 

erty  given  to  him  for  an  immoral  purpose,  in  violation  of  all  honor  and 
honesty,  he  must  say  so  in  plain  terms,  and  must  clearly  put  forward 
his  own  scoundrelism  if  he  means  to  reap  the  benefit  of  it.  Here  he 
has  simply  said  that  the  Plaintiff,  fearing  an  adverse  decision  in  the 
suit  of  Haigh  v.  Haigh,  conveyed  the  property  to  him.  I  think  that 
is  not  sufficient. 

The  next  objection  taken  was  upon  the  Statute  of  Frauds.  The 
Defendant  admits  that  he  took  the  estate  upon  the  most  positive  agree- 
ment to  return  it ;  but  in  another  part  of  his  answer  he  sets  up  the 
Statute  of  Frauds,  and  claims  the  estate  as  a  right.  Now  the  Statute 
of  Frauds  no  doubt  says,  that  a  person  claiming  under  any  declaration 
of  trust  or  confidence  must  show  that  in  writing;  but  the  statute  goes 
on  to  say  that  no  resulting  trust,  and  no  trust  arising  from  operation 
of  law,  is  within  that  enactment.  I  apprehend  it  is  clear  that  the 
Statute  of  Frauds  was  never  intended  to  prevent  the  Court  of  Equity 
from  giving  relief  in  a  case  of  a  plain,  clear  and  deliberate  fraud.  The 
words  of  Lord  Justice  Turner,  in  the  case  of  Lincoln  v.  Wright,  4 
De  G.  &  J.  16,  where  he  said,  "The  principle  of  this  Court  is  that  the 
Statute  of  Frauds  was  not  made  to  cover  frauds,"  express  a  principle 
upon  which  this  Court  has  acted  in  numerous  instances,  where  the 
Court  has  refused  to  allow  a  man  to  take  advantage  of  the  Statute  of 
Frauds  to  keep  another  man's  property  which  he  has  obtained  through 
fraud.  It  is  difficult  to  distinguish  this  case  from  that  of  Childers  v. 
Childers,  1  De  G.  &  J.  482.  It  is  consistent  entirely  with  Davies  v. 
Otty,  35  Beav.  208,  which  does  not  seem  to  me  to  carry  the  matter  at 
all  further  than  the  decision  of  Lord  Justice  Turner  in  Lincoln  v. 
Wright,  where  the  Statute  of  Frauds  was  attempted  to  be  set  up  in 
the  same  way  by  a  man  who  claimed  to  take  under  an  absolute  con- 
veyance instead  of  a  mortgage. 

That  being  so,  the  Statute  of  Frauds  and  the  ground  of  supposed 
illegality  of  the  whole  transaction  being  set  aside,  the  Defendant  comes 
into  possession  of  this  property  as  a  trustee  for  the  Plaintiff.  Then  he 
says  that  although  he  was  made  a  trustee  there  was  a  talk  about  his 
becoming  the  purchaser.  He  does  not  pretend  to  say  that  at  that 
time  there  was  any  bargain,  but  he  says  that  it  was  understood,  be- 
fore he  was  called  upon  to  rcconvey  the  property,  that  if  he  could 
make  an  arrangement  to  pinxhase  it  he  was  to  have  il.     .     .     . 

I  am  of  opinion  that  the  Defendant  has  failed  to  prove  his  case, 
and  therefore  that  the  decree  is  quite  right  in  declaring  that  he  is  to  be 


106  TEUSTS.  (Part  2 

treated  as  a  trustee  of  the  property,  and' must  reconvey  it  to  the  rep- 
resentative of  the  original  Plaintiff. 


MESCALL  V.  TULLY. 

(Supreme  Court  of  Indiana,   1883,  91  Tnd.  96.) 

Elliott,  J.  .  .  .  An  express  trust  cannot  be  created  by  parol. 
As  the  appellant  conveyed  the  land  to  Julia  Tully  by  a  deed  absolute 
on  its  face,  he  can  not  destroy  the  effect  of  his  conveyance  by  alleg- 
ing that  there  was  a  verbal  agreement  that  she  should  hold  it  in  trust 
for  both  of  them.  Our  cases  are  full  upon  this  subject,  and  they  are 
in  line  with  the  doctrine  of  the  text-writers.  Dunn  v.  Dunn,  82  Ind. 
42;  Owens  v.  Lewis,  46  Ind.  488  (15  Am.  R.  295)  ;  Pearson  v.  East, 
36  Ind.  27 ;  Irwin  v.  Ivers,  7  Ind.  308 ;  1  Perry,  Trusts,  section  79 ;  1 
Greenl.  Cr.  356,  n. ;  1  Milliard,  Real  Prop.  425. 

The  case  is  not  one  where  the  doctrine  upon  which  constructive 
trusts  are  founded  can  have  force,  for  here  the  only  trust  is  the  ex- 
press one  alleged  to  have  been  created  by  parol.  Where  there  is  an  ex- 
press trust  there  can  be  no  implied  one.  There  are  no  facts  upon  which 
the  law  can  frame  a  construction  of  a  resulting  trust.  It  would  be 
a  plain  violation  of  the  letter  and  the  spirit  of  the  statute  to  permit 
a  deed  absolute  in  its  terms  to  be  turned  into  the  conveyance  of  a  trust 
by  a  verbal  agreement.  The  very  evil  the  statute  was  intended  to  pre- 
vent is  the  one  which  would  prevail  if  an  express  trust  could  be  creat- 
ed against  an  absolute  conveyance  by  an  oral  agreement.  The  whole 
purpose  of  the  statute  would  be  defeated  if  a  deed  absolute  in  terms 
were  allowed  to  be  transformed  into  an  instrument  creating  a  trust  for 
the  benefit  of  the  grantor  or  any  one  else. 

There  was  no  contract  of  sale,  and  the  cases  of  Fisher  v.  Wilson, 
18  Ind.  133 ;  Wiley  v.  Bradley,  60  Ind.  62 ;  Stephenson  v.  Arnold,  89 
Ind.  426 ;  Jarboe  v.  Severin,  85  Ind.  496,  have  not  the  slightest  appli- 
cation. It  would  be  strange  indeed  if  a  party  could  be  permitted,  in  the 
face  of  our  broad  and  explicit  statute,  to  use  an  oral  agreement  creat- 
ing an  express  trust  for  the  purpose  of  charging  the  grantee  with  the 
value  of  the  property  conveyed  by  the  deed.  It  would  endanger  all 
titles  to  hold  such  a  doctrine.  It  finds  no  support  in  the  cases,  and  has 
none  in  principle.     ... 


Cll.    5)  RESULTING  AND    CONSTRUCTIVE    TRUST.  107 


O'NEILL  V.  CAPELLE. 

(Supreme  Court  of  Missouri,  1876,  62  Mo.  202.) 

Sherwood,  J.  This  is  a  suit  in  the  nature  of  a  bill  in  equity- 
brought  by  the  daughter  of  the  former  owner  of  certain  lands  situate 
in  St.  Louis  county,  one  S.  H.  Robbins.  The  object  of.  the  suit,  in 
which  the  husband  is  joined  as  co-plaintiff,  is  to  have  the  deed 
absolute,  under  which  the  defendant  holds  those  lands,  declared  a 
mortgage  and  for  permission  to  redeem,  etc.     .     .     . 

The  record  in  this  cause  is  a  voluminous  one,  but  the  matters  at 
issue  involved  therein  lie  within  a  very  small  compass.  In  all  pro- 
ceedings like  the  present,  the  obvious  and  chief  point  for  inquiry  and 
determination  is :  Was  the  conveyance  intended  as  a  security  for  a 
debt?  If  this  inquiry  receives  a  reply  in  the  affirmative,  it  will,  in 
the  eyes  of  equity,  effectually  and  indelibly  stamp  the  conveyance, 
however  absolute  in  form,  with  the  character,  attributes  and  incidents 
of  a  mortgage.  Ordinarily  it  is,  perhaps  necessary  in  order  to  meet 
the  requirements  of  the  statute  of  frauds,  that  a  defeasance  in  writing 
should  pass  between  the  parties ;  but  this  is  not  absolutely  essential 
in  all  cases,  for  if  the  grantee  deny  the  trust,  equity  on  proof  of  the 
trust  will  treat  such  a  denial  as  a  fraud  and  will  consequently  hold 
the  grantee  as  firmly  bound  by  his  verbal  agreement  as  though  the 
parol  defeasance  were  a  written  one  fortified  and  hedged  about  with 
all  the  formal  solemnity  known  to  the  law.     (Sto.  Eq.  Jur.,  231,  §  1.) 

Were  the  rule  otherwise,  were  a  deed  absolute  in  face  absolute 
in  fact,  the  statute  for  the  prevention  of  frauds  would  become  a  mon- 
strous misnomer,  and  instead  of  preventing,  would  pi'omote  the  crea- 
tion of  countless  frauds. 

And  courts  of  equity,  in  entmciating  the  rule  above  stated,  do  but 
pursue  the  same  enlightened  policy  in  this  regard  as  that  which  they 
invaribly  pursue  in  respect  to  parol  contracts  for  the  sale  and  convey- 
ance of  land,  parol  promises  by  a  mortgagor  and  vendor  of  land  to 
his  vendee  to  pay  off  existing  incumbrances  (Chapman  v.  I'eardsley, 
31  Conn,  115).  and  parol  promises  by  parties  exchanging  lands  to 
remove  inctmibrances.     (Pratt  v.  Clark,  57  Mo.  189.) 


108  TRUSTS.  (Part  2 

If,  however,  any  given  transaction  should  turn  out,  upon  invest- 
igation, to  be  a  conditional  sale,  and  it  should  be  satisfactorily  establish- 
ed to  be  a  real  sale  and  not  a  thin  disguise  whereby  a  loan  is  con- 
cealed, as  a  matter  of  course  such  transaction  will  be  held  valid  in 
accordance  with  the  intention  of  the  parties.  But  courts  of  equity 
watch  transactions  of  this  sort  with  such  jealous  and  ever 
vigilant 'Solicitude,  that  if  the  matter  be  in  doubt,  they  will  resolve 
that  doubt  in  favor  of  the  theory  of  a  mortgage,  and  compel  the  trans- 
action  to  assume  and  wear  that  hue  and  complexion.  (Sto.  Eq.  Jur., 
§§  1018b,  1019.) 

In  the  case  at  bar,  not  the  slightest  doubt  can  exist.  The  defendant 
denied  and  repudiated  the  trust ;  this  paved  the  way  for  the  introduc- 
tion of  parol  testimony;  and  it  was  introduced  with  cogent  and  telling 
effect.  The  allegations  of  the  petition  were  estabHshed  in  every  essen- 
tial particular ;  the  decisive  test  in  such  cases,  the  existence  of  the  debt, 
was  proved  beyond  controversy.  The  defendant's  acts,  his  admission 
before  the  trial,  and  at  the  trial  when  a  witness,  place  the  matter  in 
the  clearest  possible  light.  In  addition  to  that,  the  defendant  kept 
an  account  with  the  property  conveyed,  charging  M.  W.  Robbins, 
"whose  name  he  took  the  liberty  of  using  to  keep  a  memorandum  ac- 
count," with  sums  expended  in  relation  thereto — recorded  the  deed 
from  Ghio  to  defendant,  etc.,  and.  besides,  wrote  numerous  letters 
to  S.  H.  Robbins,  admitting  in  terms  not  to  be  misunderstood,  the  at- 
titude the  defendant  occupied  in  relation  to  the  property.  But  it 
can  serve  no  useful  purpose  to  cite  or  quote  the  evidence  in  detail ; 
it  shall  suffice  to  say  that  a  plainer  or  stronger  case  never  invoked 
equitable  interposition.     ... 


CALDWELL  v.  CALDWELL. 

(Supreme  Court  of  Kentucky,  1870,  70  Ky.   (7  Bush)   515.) 

Robe;rTson,  C.  J.  .  .  .  In  the  year  1863,  Alexander  Caldwell,  a 
citizen  of  Campbell  County,  Kentucky,  shortly  before  his  death,  pub- 
lished his  last  will,  whereby  he  contemplated  a  proximate  equality  in 
the  distribution  of  his  estate  among  his  six  children,  one  of  whom, 
James  Caldwell,  was  then  a  soldier  in  the  C'onfederate  army.     The 


Ch.  Tj)  resulting  and  constructwe  trust.  109 

testator,  sympathizing  with  that  son  and  the  cause  he  had  espoused, 
indicated  a  desire  to  secure  to  him  "the  home  place"  of  nearly  three 
hundred  acres  of  land,  which  would  not  have  exceeded  the  value  of 
the  devises  to  each  of  his  other  five  children  then  near  him.  But  ap- 
prehending that  James,  if  he  should  even  survive  the  war,  might  by 
his  rebellion  against  the  Government  of  the  United  States  forfeit  his 
estate,  he  devised  the  legal  title  of  the  "home  place"  to  his  other  five 
children,  on  a  latent  trust  that  if  James  should  ever  return,  and  be 
capable  of  holding  the  title,  they  should  convey  it  to  him.  And  this, 
according  to  satisfactory  oral  testimony,  they  understood  and  tacitly 

agreed  to  fulfill. 

On  his  return,  about  the  close  of  the  war,  there  being  no  danger 
of  forfeiture,  two  of  those  devisees,  Daniel  and  William  Caldwell, 
true  to  the  trust,  each  conveyed  to  him  one  fifth  of  the  land,  of  the 
whole  of  which  he  thereupon  took  possession  with  the  apparent  ac- 
quiescence of  the  other  three  devisees  of  the  home  tract;  and  this 
possession  he  appears  to  have  retained  without  disturbance  or  com- 
plaint for  more  than  three  years,  when  the  three  recusant  dev- 
isees and  the  husband  of  one  of  them  refusing  to  convey  their  in- 
terests to  him,  he  on  the  10th  of  September,  1869,  brought  this  suit 
against  them  for  enforcing  their  obligation  under  a  resulting  trust. 
His  petition  charging  the  trust  was  denied  by  their  answer ;  and  on  that 
issue  the  circuit  court  decreed  a  release  to  James  of  their  title,  and  by 
this  appeal  they  seek  to  reverse  that  decree. 

Implied  trusts  being  excepted  from  the  statute  of  frauds  and  per- 
juries, if  the  facts  established  such  a  trust  ui  this  case,  no  written 
memorial  of  it  was  necessary  for  enforcing  it.  nor  was  the  oral  testi- 
mony incompetent  on  the  alleged  ground  that  it  contradicts  the  will. 

Extraneous  testimony  is  incompetent  to  supply  an  unintentional 
omission  or  to  contradict  an  expressed  intention  in  a  will.  But  the 
facts  established  by  extrinsic  evidence  in  this  case  have  no  such  aim 
or  effect.  They  are  consistent  with  the  testator's  intention,  and  with 
the  concession  that  the  will  is  just  what  he  intended  it  to  be,  and  they 
supply  nothing  which  he  unintentionally  ojuitted.  He  intended  to 
pretermit  his  son  James  as  an  express  devisee  of  the  land,  and  to  rely 
for  his  benefit  on  the  plighted  honor  of  the  express  devisees.  Might  he 
not  have  done  so  securely  on  a  promise  that  the  five  devisees  would 
pay  to  James  ten  thousand  dollars?  and  would  proof  of  such  agree- 


110  TRUSTS.  (Part  2 

ment  contradict  the  will,  or  supply  any  unintentional  omission  in  it, 
without  which  omission  his  purpose  of  making  James  a  co-equal 
beneficiary  might  have  been  frustrated  by  Impending  forfeiture? 

The  competency  of  oral  testimony  for  establishing  and  enforcing 
such  trusts  as  that  claimed  in  this  case  is  prescriptively  recognized 
by  undeviating  authorities,  among  a  great  multitude  of  which  we  only 
cite  the  following:  Drakeford  v.  Weeks,  3  Atkins,  639;  Barrow  v. 
Greenhough,  3  Vesey,  152;  Strickland  v.  Aldridge,  9  Vesey,  519; 
Maislar  v.  Gillespie,  11  Vesey,  639;  2  Powell  on  Devises,  415.  To 
these  citations  we  might,  if  deemed  needful,  add  many  others  in  Eng- 
land and  America,  and  even  in  this  court,  illustrative  of  the  same  prin- 
ciples. 

On  the  like  principles  the  most  familiar  case  of  resulting  trusts  is 
upheld.  Why  else,  where  an  unqualified  title  to  land  is  conveyed  to 
one,  the  law  has  adjudged  that  he  holds  it  in  trust  for  another  on 
oral  proof  that  the  latter  paid  the  consideration,  in  the  absence  of 
any  fact  authorizing  a  countervailing  presumption?  In  such  a  case 
there  is  no  sale  of  land  by  the  one  to  the  other  requiring  writing,  and 
the  extraneous  fact  is  admitted  not  to  contradict  the  deed,  but  to 
prevent  a  fraud. 

So  here,  had  not  the  actual  devisees  been  understood  by  the  testa- 
tor as  accepting  the  devise  in  trust  for  James,  an  essentially  different 
will  would  have  been  made,  excluding  their  power  over  the  land  as 
devised;  and  consequently  their  refusal  to  execute  the  trust  is  a 
constructive  fraud  on  the  testator  as  well  as  on  their  brother  James. 

The  proof  of  the  trust  is  corroborated  by  the  conduct  of  Daniel 
and  William,  by  the  testator's  purpose  of  equality,  and  by  the  apparent 
recognition  of  it  by  the  acquiescence  in  the  claim  and  possession  by 
James  for  years  since  his  return. 

We  are  satisfied  that  the  will  was  made  as  it  is,  with  the  mutual 
understanding  of  the  trust  as  claimed. 

Wherefore,  we  conclude  that  the  judgment  of  the  circuit  court  is 
right,  and  therefore  afifirm  it. 


Cll.    5)  BESULTING  AND    CONSTRUCTIVE    TRUST.  Ill 


PHILLIPS  V.  PHILLIPS. 

(Supreme  Court  of  Missouri,  1872,  50  Mo.  603.) 

Bliss,  J.  The  plaintiff  seeks  to  quiet  and  have  confirmed  to  him 
the  title  to  some  9,000  acres  of  land  which  he  claims  were  deeded  to 
him  by  his  father,  Shapley  R.  Phillips,  while  living,  but  shows  that 
the  deeds  were  lost  without  being  recorded.  He  makes  the  heirs  of 
decedent  parties,  and  also  the  heirs  of  Mrs.  Phillips,  now  deceased,  who 
was  a  second  wife  and  not  his  mother,  and  who  had  elected  to  take 
a  child's  interest  in  the  estate  of  her  deceased  husband.  Mrs.  Phillips' 
heirs  alone  seem  to  be  defending,  but  I  find  a  minor  grandson  of  said 
Shapley  R.  among  the  parties,  whose  interest  the  court  should  protect 
without  reference  to  the  character  of  the  defense  made  by  his  guardian. 
The  whole  claim,  then,  of  the  plaintiff  must  be  treated  as  contested 
both  by  Mrs.  Phillips'  heirs,  as  inheriting  her  interest  in  the  estate, 
and  the  plaintiff  co-heirs. 

It  is  established  by  the  clearest  evidence  that  Shapley  R.  Phillips, 
in  February,  1861,  two  years  previous  to  his  death,  executed  to  the 
plaintiff  three  deeds  to  the  land  claimed  in  this  proceeding,  and  that 
his  said  wife  joined  in  the  deeds,  relinquishing  her  dower.  These 
conveyances  embraced  all  the  land  owned  by  decedent  except  the  home 
farm  of  about  1,800  acres,  and  the  consideration  expressed  was  love 
and  affection  and  $1,000,  which  sum  the  plaintiff  does  not  claim  to  have 
paid.     .     .     . 

The  decree  of  the  court  below  vests  in  the  plaintiff  the  whole  prop- 
erty contained  in  the  three  deeds  to  hold  for  his  own  use.  The  cir- 
cumstances attending  their  execution,  and  the  declarations  of  the 
grantor,  indicate  that  he  intended  the  property  conveyed  to  be 
held  for  the  use  of  his  three  children.  No  other  reason  can  be  given 
for  his  desire  that  it  should  be  embraced  in  three  deeds  instead  of  one. 
Though  that  fact  of  itself  may  prove  nothing,  yet  in  connection  with 
the  circumstances  surrounding  their  execution,  it  is  not  without  sig- 
nificance. There  is  nothing  whatever  that  indicates  any  design  to 
disinherit  the  other  children.  That  was  not  the  motive  that  induced 
the  conveyance,  but   the  grantor   seemed   for   some   reason   to  have 


112  TRUSTS.  (Part  2 

a  strong  desire  that  the  ownership  of  his  lands  should  be  settled, 
or  that  they  should  be  disposed  of  before  he  died,  reserving  only 
the  home  farm,  \yhen  asked  why  he  conveyed  them  all  to  Amos, 
he  replied  that  Amos  would  not  wrong  his  brother  and  sister;  or, 
as  the  magistrate  testitied  at  the  trial,  "When  1  asked  him,  why  write 
these  deeds,  why  not  make  one  to  each  of  his  children?"  he  said, 
"Make  the  deeds  to  Amos;  he  will  never  defraud  his  brother  and  sis- 
ter."  Amos  had  just  come  of  age,  one  of  his  other  children  was  a 
daughter ;  her  age  was  not  given,  and  the  other  one  an  infant  son.  It 
is  evident  that,  instead  of  dividing  up  his  land  himself,  he  trusted  the 
division  to  his  eldest  son,  and  for  reasons  which,  perhaps,  do  not  ap- 
pear. But  enough  appears  to  show  a  trust  and  confidence  reposed  in 
him,  and  that  to  ignore  it  would  defraud  his  brother  and  sister." 

In  this  proceeding  we  are  not  called  upon  lo  say  whether  or  not  this 
trust  would  be  enforced  at  the  suit  of  his  brother  and  the  heir  of  the 
sister.     But  the  court  will  not  put  him  who  manifests  a  disposition 
to  ignore  his  obligation   in  a  position  to  be   able  to  profit   by   such 
disposition;  and  even  if  we  conceded  that  no  obligation  was  shown, 
still  a  preference  of  one  child  over  another  is  of  itself  so  contrary  to 
natural  justice  and  the  pohcy  of  our  laws  that  we  should  not  be  inclin- 
ed to  aid  such  preference.     The  decree  below  gives  the  plaintiff  an 
absolute  title.    The  other  heirs  are  made  parties  and  are  bound  by  it, 
and  are  so  far  disinherited  entirely.     It  is  true  they  make  no  defense, 
and  the  brother  being  now  of  age  may  trust  the  plaintiff  if  he  chooses, 
and  consent  to  this  judgment;  but  the  infant  heir  of  his  sister  can 
consent  to  nothing,  and  it  is  the  duty  of  the  court  to  protect  his  rights. 
The  judgment  of  the  court  should  therefore  be  reversed  and  the  cause 
remanded.     If  the  plaintiff  shall  be  willing  to  protect  the  rights  and 
interest  of  his  sister's  child,  we  think  he  is  entitled  to  relief,  and  the 
court  below  should  give  him  judgment  upon  his  making  a  satisfactory 
provision  for  such  minor,  either  by  an  independent  instrument  or  in 
the  judgment ;  and  if  he  declines  to  make  such  provision  he  should  not 
be  aided  in  perfecting  his  title.    The  other  judges  concur. 


Ch.    5)  EESUI/riNG'  AND    CONSTRUCTIVE    TEUST.  113 


PERRY  V.  STRAWBRIDGE. 
(Supreme  Court  of  Atissouri,  1907,  209  Mo.  621,  108  S.  W.  641.) 

Graves,  J.  .  .  .  This  is  an  exceedingly  interesting  case.  The 
question  for  determination,  bluntly  stated,  is.  Can  a  husband  who 
murders  his  wife  inherit  the  one-half  part  of  her  estate  under  section 
2938,  Revised  Statutes,  1899?  To  this  State  it  is  a  new  question, 
and,  with  few  exceptions,  a  new  one  in  all  the  States.  But  few  courts 
of  last  resort  have  been  called  upon  to  pass  upon  the  question  as 
to  what  effect  the  criminal  act  of  a  prospective  legal  heir  will  have 
upon  his  or  her  rights,  under  positive  statutes  governing  descents 
and  distributions.  Of  those  which  have  passed  upon  it  we  frankly 
confess  that  the  holdings  of  a  majority  thereof  are  against  the  views 
which  we  entertain  and  will  hereafter  express.  We  are  not  satisfied 
with  the  reasoning  of  those  cases  and  have  been  unable  to  reach  the 
conclusion  that  a  mere  prospective  legal  heir,  or  devisee  in  a  will,  can 
make  certain  that  which  was  uncertain,  by  his  own  felonious  act, 
in  the  cold-blooded  murder  of  the  party  from  whom  he  or  she  expects 
to  inherit.  We  do  not  believe  that  these  courts  have  fully  applied  and 
used  the  canons  of  statutory  construction  which  we  have  the  right  to 
use  and  ought  to  use  to  avoid  a  result  so  repugnant  to  common  right 
and  common  decency.  The  construction  as  has  been  given  such 
statutes  bruises  and  wounds  the  finer  sensibilities  of  every  man.  In 
the  case  at  bar,  the  murdered  woman,  younger  in  years,  might  have 
outlived  the  prospective  heir.  The  property  involved  in  this  very  suit 
might  have  been  used  by  her  for  her  own  comforts  even  though  she 
had  died  first.  Being  hers  it  might  have  been  sold  and  the  proceeds 
disposed  of  by  gift  or  otherwise.  Can  it  be  said  that  one,  by  high- 
handed murder,  can  not  only  make  himself  an  heir  in  fact,  when  he  had 
but  a  mere  expectancy  before,  but  further  shall  enjoy  the  fruits  of  his 
own  crime?  To  us  this  seems  abhorrent  to  all  reason,  and  reason  is 
the  better  element  of  the  law.     .     .     . 

In  fact,  the  pathway  of  judicial  literature  from  the  earliest  period 
down  to  the  present  is  literally  strewn  with  cases,  which  like  beacon 
lights   have   guided   the    hand    of    justice    in    preventing   unjust,    un- 

2  Eq.— 8 


114  '    TRUSTS.  (Part  2 

righteous,  absurd,  unreasonable  and  abhorrent  results  from  the  use  of 
general  words  and  expressions  in  statutes.  To  cite  and  quote  more 
would  be  but  to  become  tedious.  We  have  gone  thus  far  on  account 
of  the  newness  of  the  .particular  question  of  this  case.  Under  these 
authorities  we  should  not  and  will  not  hold,  that  "widower"  as  used 
in  section  2938,  supra,  means  one  who  has  created  a  condition  by 
murderous  hands  and  heart.  This  case  is  without  the  statute. 
"Widower"  as  there  used  means  one  who  has  been  reduced  to  that 
condition  by  the  ordinary  and  usual  vissitudes  of  life,  and  not  one  who, 
by  felonious  act,  has  himself  created  that  condition.     .     .     . 


ELLERSON  v.  WESTCOTT. 

(New  York  Court  of  Appeals,  1896,  148  N.  Y.  149,  42  N.  E.  540.) 

The  plaintiff,  claiming  as  one  of  the  heirs  of  her  brother,  Munroe 
Westcott,  who  died  May  9,  1891,  seised  of  several  parcels  of  real 
estate,  in  November,  1893,  commenced  this  action  for  partition.  .  , 
After  issue  had  been  joined,  the  plaintiff  made  a  motion  at  special 
term  to  amend  her  complaint,  which  motion  has  given  rise  to  this 
appeal.  The  amendment  sought  was  to  permit  her  to  allege,  in 
substance,  that  the  defendant  Elizabeth  P.  Wescott,  for  the  purpose 
of  realizing  the  benefits  given  her  by  the  will,  caused  the  death  of  the 
testator  by  the  administration  of  poison  or  by  other  means.  The 
special  term  denied  the  motion,  but  its  order  was  reversed  by  the 
general  term,  and  from  the  order  of  reversal  this  appeal  is  taken. 

Isaac  H.  Maynard,  for  appellants.     A.  P.  Wales,  for  respondent. 

Andrijws,  C.  J.  (after  stating  the  facts).  The  plaintiff  and  the 
defendants  Elizabeth  P.  Westcott  and  Cora  P.  Ganung  were  never 
tenants  in  common  or  joint  tenants  of  the  real  property  sought  to  be 
partitioned.  The  plaintiff  claims  title  as  one  of  the  heirs  at  law  of 
the  testator,  Munroe  Westcott.  The  record  title  is  by  the  will  in 
the  defendants  named  and  others.  If  the  will  is  given  full  effect,  the 
plaintiff  has  no  title  to  or  interest  in  the  land.  ...  If  the  fact 
stated  in  the  proposed  amendment,  to  the  effect  that  the  defendant 
Elizabeth  P.  Westcott  caused  the  death  of  the  testator  by  poisoning  or 
other  felonious  means  to  enable  her  to  come  into  possession  of  the 


Cll.    5)  EESULTIXG  AND    CONSTRUCTIVE    TRUST.  115 

estate  devised  to  her,  would,  if  proved,  make  the  devise  to  her  void, 
the  court  had  power  to  permit  the  amendment  to  be  made,  and  the 
denial  of  the  motion  at  special  term,  which  was  put  on  the  want  of 
power  was  erroneous.     If,  on  the   other   hand,   conceding  that   the 
fact  sought  to  be«  introduced  by  amendment  was  true,  nevertheless  the 
devise  to  the  testator's  wife  was  not  thereby  rendered  void,  the  issue 
tendered  could  not  be  tried  in  a  partition  action.     The  plaintiff  relies 
upon  the  case  of  Riggs  v.  Palmer,  115  N.  Y.  514,  22  N.  E.  188,  as 
establishing  that  where  a  legatee  or  devisee  under  a  will,  to  prevent 
a  revocation  or  to  anticipate  the  enjoyment  of  the  benefit  conferred, 
puts  the  testator  to   death,   the   felonious   act   makes   the   legacy   or 
devise  void.     We  think  this  contention  is  not  justified  by  that  case. 
That  was  an  action  by  an  heir  at  law  of  a  testator  against  a  devisee 
and  legatee  who  had  murdered  the  testator  to  obtain  the  possession 
of  the  property  given  him  by  the  will,  to  cancel  the  provisions  for  his 
benefit,  and  to  have  it  adjudged  that  he  was  not  entitled  to  take  under 
the  will,  or  to  share,  as  distributee  or  otherwise,  in  the  estate  of  the 
testator;  and  the  relief  was  granted.     But  the  court  did  not  decide 
that  the  will  was  void.    A  will  may  be  void  for  many  reasons.    It  may 
not  have  been  executed  with  the  forms  required  by  law.     It   may 
dispose  of  the  property  upon  limitations  in  contravention  of  law.    The 
testator  may,  by  reason  of  alienage  or  other  incapacity,  be  incapable 
of  making  a  will.     The  statute  may  interpose  a  prohibition  against 
devises  or  bequests  to  certain  persons  or  corporations,  or  affix  limita- 
tions; and  wills  made  in  violation  of  the  statute  will  be  void,  either 
in  whole  or  partially.     Hall  v.  Hall,  81  N.  Y.  130.     A  will  may  be 
procured  by  fraud  or  undue  influence,  and,  if  this  is  established,  the 
will  is  void,  because  it  is  not  in  law  the  act  of  the  testator. 

But  the  case  presented  by  the  fact  sought  to  be  introduced  by  the 
amendment  to  the  complaint  in  this  action  does  not  show,  or  tend  to 
show,  that  the  will  was  void.  It  alleges  neither  incompetency  on  the 
part  of  the  testator,  nor  any  defect  in  the  execution  of  the  will,  nor 
that  the  devise  to  the  testator's  wife  was  in  contravention  of  any 
statute,  nor  that  it  was  procured  by  fraud  or  undue  influence,  nor  that 
the  wife  was  under  any  incapacity  to  take  and  hold  property  by  will. 
If  the  fact  sought  to  be  incorporated  in  the  complaint  can  be  established, 
Riggs  V.  Palmer  is  an  authority  that  a  court  of  equity  will  intervene, 
and  deprive  her  of  the  benefit  of  the  devise.     It  will  defeat  the  fraud 


116  TRUSTS.  (Part  2 

by  staying  her  hand  and  enjoining  her  from  claiming  under  the  will. 
But  the  devise  took  effect  on  the  death  of  the  testator,  and  transferred 
the  legal  title  and  right  given  her  1)y  the  will.  The  relief  which  may 
be  obtained  against  her  is  equitable  and  injunctive.  The  court,  in 
a  proper  action,  will,  by  forbidding  the  enforcement  of  a  legal  right, 
prevent  her  from  enjoying  the  fruits  of  her  iniquity.  It  will  not  and 
cannot  set  aside  the  will.  That  is  valid,  but  it  will  act  upon  facts 
arising  subsequent  to  its  execution,  and  deprive  her  of  the  use  of 
the  property.  The  civil  law  debarred  one  who  procured  the  death 
of  another  from  succeeding  to  his  estate,  either  as  testamentary  heir 
or  by  inheritance,  on  the  ground  that  he  was  unworthy.  Domat  says 
he  shall  be  deprived  to  the  inheritance  (part  2,  bk.  1,  tit.  1,  sec.  3), 
and  in  the  Code  Napoleon  (section  627)  such  a  person  is  classed 
among  those  "unworthy  to  succeed,  and  as  such  excluded  from  suc- 
cession." This  was  one  of  the  penalties  for  his  misconduct.  It  op- 
erated to  exclude  him  from  the  benefit  of  the  devise  on  the  prin- 
ciple that  by  his  conduct  he  had  debarred  himself  from  claiming 
it.     .     .     . 


TENNISON  V.  TENNISON. 

(Supreme  Court  of  Missouri,  1870,  46  Mo.  77.) 

Currier,  J.  .  .  .  The  petition  shows  in  brief  that  the  plain- 
tiff intermarried  with  the  defendant,  Archibald  Tennison,  many  years 
ago,  and  that  they  have  ever  since  lived  together  as  husband  and 
wife,  and  are  still  so  living  together  in  that  relation;  that  the  plain- 
tiff, subsequently  to  such  intermarriage,  derived  from  her  father  and 
his  estate  a  considerable  amount  of  money  and  property;  that  it  was 
mutually  arranged  and  agreed  upon  between  herself  and  husband 
that  he  should  take  a  certain  portion  of  such  property  as  his  own 
absolute  estate,  the  plaintiff  waiving  her  right  to  a  settlement  of  any 
portion  of  it  upon  herself,  and  that  he  did  so  receive  and  appropriate 
to  his  own  use  his  agreed  proportion  of  said  property;  that  her  hus- 
band, in  consideration  thereof,  agreed  to  invest  certain  other  moneys, 
together  with  certain  land  warrants  acquired  by  the  plaintiff  from 
her  father  and  his  said  estate,  in  lands  to  the  sole  and  separate  use 


Ch.    5)  RESULTING  AND    COXSTRUCTIVE    TRUST.  117 

of  the  plaintiff  and  in  her  name;  that  her  husband,  in  considera- 
tion and  in  pursuance  of  the  premises,  did  in  fact  apply,  use,  and 
invest  such  moneys  and  land  warrants  in  the  purchase  and  acquisition 
of  the  lands  described  in  the  petition,  taking  a  deed  thereof  in  his 
own  name;  the  plaintiff  supposing  and  believing,  however,  that  the 
lands  were  conveyed  directly  to  herself  for  her  separate  use.  The 
petition  further  shows  that  the  plaintiff's  husband  and  the  other  de- 
fendants entered  into  a  fraudulent  combination  and  conspiracy  to 
cozen  and  cheat  the  plaintiff"  out  of  her  equitable  right,  title,  and 
interest  in  said  lands ;  and  that  her  husband,  in  pursuance  of  such 
fraudulent  conspiracy,  conveyed  said  lands  to  the  other  defendants 
voluntarily  and  without  consideration,  and  with  a  view  fraudulently 
to  cut  oft'  and  defeat  the  plaintiff's  equitable  rights,  the  grantees 
therein  being  parties  to  the  alleged  fraud.  The  petition  also  shows 
that  two  of  said  grantees  have  purchased  and  acquired  the  interest 
of  one  of  the  other  grantees,  taking  such  interest,  however,  with  a 
full  knowledge  of  the  alleged  fraud. 

Such  is  the  substance  of  the  petition,  and  the  question  is  raised 
whether  the  post-nuptial  agreement  therein  stated,  and  the  other  con- 
nected facts  therein  alleged,  are  of  a  character  to  warrant  the  granting 
of  the  relief  sought. 

The  theory  of  the  common  law  that  husband  and  wife,  for  legal 
purposes,  constituted  but  one  personality,  and  that  they  are  con- 
sequently incompetent  to  contract  with  each  other,  has  but  a  lim- 
ited and  quite  restricted  application  in  equity.  For  many  purposes 
courts  of  equity  treat  them  as  separate  and  independent  persons,  and 
fully  recognize  their  authority  and  capacity  to  make  valid  and  bind- 
ing contracts  between  themselves,  and  to  have  separate  and  independent 
estates,  rights,  interests  and  liabilities.  A  contract  between  husband 
and  wife  will  be  held  good  in  equity,  as  a  general  rule,  when  it  would 
be  valid  and  binding  at  law  if  made  with  the  trustees  of  the  wife 
for  her  benefit.  In  equity,  the  intervention  of  trustees  is  not  an  in- 
dispensable prerequisite  to  the  validity  of  the  contract.  (Sto.  Eq.  Jur., 
§§  1368,  1372-4;  Barron  v.  Barron,  24  Verm.  375;  Wallingsford  v. 
Allen,  10  Pet.  583 ;  Kenny  v.  Kenny.  5  Johns,  Ch.  463 ;  Resor  v.  Rcsor, 
9  Ind.  347.) 

If  the  contract  set  out  in  the  petition  had  been  made  between 
Archibald  Tennison  acting  in  his  own  behalf,  and  trustees  appointed 


118  TRUSTS.  (Part  2 

for  that  purpose  acting  in  behalf  of  his  wife,  the  vahdity  of  the  con- 
tract would  hardly  be  questioned  either  in  law  or  equity.     .     .     . 

It  is  objected,  however,  in  the  case  at  bar,  that  Tennison,  the  hus- 
band, had  reduced  the  money  and  property  which  were  employed  in 
the  acquisition  of  the  disputed  premises,  to  possession;  and  it  is 
thence  argued  that  such  money  and  property  thereby  became  his,  and 
that  he  was  consequently  at  liberty  to  use  and  dispose  of  it  as  he 
pleased  and  without  accountability  to  his  wife.  The  conclusion  may 
be  a  legitimate  one  at  law,  but  it  is  not  so  in  equity,  as  we  have  al- 
ready, perhaps,  sufficiently  seen.  In  equity,  the  mere  reception  of  the 
property  by  the  husband  is  not  such  a  reducing  of  it  to  possession  by 
him  as  to  defeat  the  equitable  rights  of  the  wife,  unless  the  husband 
received  it  solely  in  the  exercise  of  his  marital  rights  and  for  the 
purpose  of  appropriating  it  to  his  own  use.  (See  the  several  au- 
thorities already  cited). 

In  the  case  before  us  the  petition  abundantly  shows  that  the  hus- 
band did  not  receive  the  money  and  warrants  for  the  purpose  of  ap- 
propriating them  to  his  own  use,  but  expressly  and  by  positive  agree- 
ment for  the  benefit  of  his  wife,  and  to  be  appropriated  to  her  sole 
and  separate  use.  He  made  the  contemplated  purchase  in  his  own 
name,  and  equity  will  treat  him  as  holding  the  title  as  trustee  for  his 
wife.  The  other  defendants  acquiring  their  interest  without  con- 
sideration, and  as  the  result  of  a  conspiracy  to  which  they  were  par- 
ties to  defraud  Mrs.  Tennison  out  of  her  equitable  rights,  stand  in  no 
better  position.     .     .     . 


NEBRASKA  NATIONAL  BANK  v.  JOHNSON. 

(Supreme  Court  of   Nekraska,   1897,   51   Neb.   546,   71   N.  W.   294.) 

Post,  C.  J.  This  was  an  action  in  the  district  court  for  Douglas 
county,  whereby  it  was  sought  to  impress  with  a  trust  in  favor  of 
the  plaintiff,  the  Nebraska  National  Bank,  certain  property,  to  wit, 
lots  3  and  4  of  block  3,  Willis  Park  Place  Addition  to  the  city  of 
Omaha,  the  legal  title  of  which  was  held  by  the  defendant,  Brooks 
R.  Johnson.  The  cause  of  action  alleged  is,  in  substance,  that  the 
defendant  above  named  was,  during  the  month  of  August,  1890,  and 


Cb.    5)  RESULTING  AND    CONSTRUCTIVE    TRX^ST.  119 

for  a  long  time  prior  thereto,   in  the  employ  of  the  plaintiff  hank, 
his  duties  being,  for  a  fixed  compensation,  to  sweep  the  bank's  offices, 
to  arrange  and  care  for  the  furniture  therein,  and,  while  in  the  dis- 
charge of  his  said  duties,  to  watch  over,  guard,  and  preserve,  to  the 
extent  of  his  ability,  all  property  of  the  bank,  including  moneys,  notes, 
and  papers;  that  the  said  defendant,  on  the  13th  day  of  August,  1890, 
while  in  the  discharge  of  his  said  duties,  and  in  violation  of  the  trust 
imposed  in  him  by  the  plaintiff,  wrongfully  took,  carried  away,  and 
appropriated  to  his  own  use  the  sum  of  $5,000  in  gold  coin,  the  prop- 
erty of  the  said  plaintiff ;  that  the  said  defendant  thereafter  purchased 
and  improved  the  property  above  described  with  plaintiff's  said  money 
so  wrongfully  taken  and  converted  by  him,  and  that  said  property  is 
now  and  has  for  a  long  time  been  occupied  and  claimed  as  a  homestead 
by  the  said  defendant  and  his  wife,  Ellen  Johnson.     It  was  further 
charged  that  the  said  Brooks  R.  Johnson  is  wholly  insolvent,  having 
no  property  whatever  aside  from  the  real  estate  here  in  controversy. 
The  prayer  was  that  the  defendants  might  be  adjudged  to  hold  said 
property  in  trust  for  the  plaintiff,  for  a  decree  confirming  the  title 
of  the  latter,  and  for  general  relief.     .     .     . 

The  other  questions  discussed  are   (1)   whether  the  relation  of  the 
parties  toward  each  other  was  a  fiduciary  one  in  the  sense  in'  which 
that  term  is  understood  and  employed  by  courts  of  equity  ;  (2)  whether, 
assuming,  as  claimed,  that  the  evidence  fails  to  establish  any  such  re- 
lation of  trust  and  confidence,  will  equity  interfere  for  the  purpose  of 
declaring  in  favor  of  the  injured  party  a  trust  with  respect  to  property 
purchased  by  a  thief  with  the  fruits  of  his  larceny.     The  propositions 
implied  from  the  foregoing  inquiries,  although  separately  treated  by 
counsel  for  defendants,  are  in  fact  so  nearly  akin  that  they  may  with 
propriety  be  discussed  together.     It  has  been  held  that  no  trust  re- 
sults in  favor  of  the  owner  with  respect  to  the  proceeds  of  property 
stolen  by  a  mere  servant,  and  that  the  master  is  in  such  case  restrict- 
ed in  his  remedy  to  an  action  for  damage,  and  to  a  prosecution  of  the 
thief  in  a  court  of  criminal  jurisdiction.    A  review  of  the  cases  tending 
to  support  that  view  will  not  be  attempted  in  tliis  connection.      It   is 
sufficient  that  the  doctrine  therein  asserted  is.  in   our  judgment,  in- 
defensible   on    authority    and    opposed   to    the    enlightened    policy    of 
modern  equity  jurisprudence.     Tiic  dodrinc  of  constructive  trusts  as 
developed  by  courts  of  equity  was  intended  primarily  as  a  rc-nu-dy  for 


120  TRUSTS.  .      (Part  2 

fraud  in  cases  where  the  established  rules  had  proved  wholly  inad- 
equate, and  larceny  under  the  circumstances  here  disclosed  is  none  the 
less  a  fraud  upon  the  owner  of  the  property  stolen  because  committed 
by  a  servant  instead  of  one  who  is,  in  the  technical  sense  of  the  term, 
a  trustee.  Speaking  on  that  subject,  it  is  said  in  a  recent  valuable 
work:  "The  subject  of  constructive  trusts  is  intimately  connected  with 
that  of  frauds ;  indeed,  the  basis  of  all  such  trusts  is  fraud,  either 
actual  or  presumed.  Rightly  understood,  a  constructive  trust  is  only 
a  mode  by  which  courts  of  equity  work  out  equity  and  prevent  or  cir- 
cumvent fraud  and  overreaching."     .     .     . 

In  Newton  v.  Porter,  5  Lans.  (N.  Y.),  416,  which  was  an  action  in 
equity  to  compel  the  defendants  to  account  for  the  proceeds  of  certain 
stolen  bonds  acquired  by  them  with  notice  of  the  plaintiff's  rights. 
Miller,  P.  J.,  said  in  reversing  the  decree  below  dismissing  the  com- 
plaint ;  "No  exception  is  made  in  favor  of  a  person  who  occupies  no 
fiduciary  relation  to  another,  and  the  elementary  books  generally  do 
not  notice  any  exception  from  the  rule  where  the  money  or  property 
has  been  obtained  by  means  of  a  felony.  It  would  certainly  be  an 
anomaly  in  the  history  of  legal  proceedings,  and  a  grave  reflection  upon 
the  administration  of  justice,  if  a  felon  could  invest  the  fruits  of  his 
crime,  "or  dispose  of  them  in  such  manner  as  to  place  them  beyond  the 
reach  of  the  law."  In  the  same  case  Balcom,  J.,  after  a  review  of  the 
authorities,  said :  "The  court  should  not  refuse  to  allow  a  party  to 
recover  the  avails  of  property  stolen  from  him  on  any  technical  grounds 
when  the  merits  of  the  case  clearly  require  that  he  should  recover, 
and  the  court  should  jump  all  technicalities  an.d  be  as  astute  in  dis- 
covering a  remedy  for  upholding  the  rights  of  such  a  party  as  the 
thief  is  in  contriving  ways  and  means  to  cheat  him  out  of  his  property, 
and  the  avails  of  it,  by  changing  the  same  from  one  kind  to  another 
and  placing  it  in  the  hands  of  third  persons."  And  the  court  of  ap- 
peals, in  affirming  the  judgment  of  the  supreme  court,  use  language 
equally  emphatic  as  that  above  quoted.  (Newton  v.  Porter,  69  N.  Y., 
133.)  It  will  be  observed  from  an  examination  of  the  cases  cited  in 
support  of  the  opposing  view  that  they  depend,  with  few  exceptions, 
upon  Pascoag  Bank  v.  Hunt,  3  Edw.  Ch.  (N.  Y.),  583,  but  which,  as 
remarked  by  Irvine,  C,  in  Tecumseh  National  Bank  v.  Russell,  50 
Neb.,  281,  "is  directly  contrary  to  the  ruling  of  the  same  vice  chan- 
cellor in   Bank  of  America  v.    Pollock,  4   Edw.   Ch.    (N.   Y.),   215, 


Cll.    5)  RESULTING'  AND    CONSTRUCTIVE    TRUST.  121 

and     .     .     .     opposed  to  the  well  settled  principles  governing  similar 


cases." 


WOODHOUSE  V.  CRANDALL. 

(Supreme  Court  of  Illinois,  1902,  197  111.  104,  64  N.  E.  292.) 

Cartwright,  J.  .  .  .  The  material  question  in  the  case  there- 
fore, is,  whether  the  trust  fund  deposited  by  Furlong  can  be  traced 
and  identified,  and  upon  that  question  the  law  is  well  settled  that  it 
is  not  necessary  the  money  or  bank  bills  should  be  identified.  The 
suit  is  not  to  recover  a  specific  thing,  such  as  particular  pieces  of 
money  or  bills,  but  a  certain  sum  of  money  held  in  trust,  and  it  is 
the  identity  of  the  fund,  and  not  the  identity  of  the  money  or  currency, 
which  is  to  be  established.  In  the  early  case  of  School  Trustees  v. 
Kirwin,  25  111.  62,  the  court  said  (p.  65)  :  "It  is  not  necessary,  if  the 
trust  be  moneys,  that  the  particular  coin  or  kind  of  money  or  the  in- 
dividual pieces  shall  be  identified  in  order  to  pursue  it,  but  its  identity 
as  a  fund  must  be  preserved  so  that  it  can  be  distinguished  from  all 
other  money.  So  long  as  it  can  be  followed  as  a  separate  and  indepen- 
dent fund,  distinguishable  from  any  other  fund,  it  can  be  pursued." 
The  court  held  that  appellants  would  be  entitled  to  an  enlarged  decree 
in  their  behalf  if  the  facts  established  the  identity  of  the  fund,  but  they 
did  not.  Again,  in  Kirby  v.  Wilson,  98  111.  240,  the  court,  in  passing 
on  instructions,  said  (p  247)  :  "If  these  instructions  conveyed  to  the 
jury  the  idea  that  no  recovery  could  be  had  unless  the  identical  bills 
received  by  Alexander  for  the  cattle  came  into  the  hands  of  the  exec- 
utor, then  they  were  erroneous."  It  makes  no  dilTerence,  then,  in 
tracing  this  fund,  that  the  original  package  of  bills  was  not  preserved, 
but  the  question  is  whether  the  trust  fund  can  be  followed  and  found. 

Again,  it  makes  no  difiference  on  the  (juestion  of  identity  that  the 
fund  was  mingled  with  other  moneys  of  the  bank.  Tbat  question 
was  also  settled  in  Kirby  v.  Wilson,  supra  where  it  was  held  that  the 
identity  of  the  fund  is  not  destroyed  and  lost  merely  by  being  mingled 
with  other  moneys  of  the  trustee.  In  that  case,  Alexander  sold  cattle 
and  received  the  proceeds  in  trust  to  pay  the  same  over  to  the  Wilsons. 
He  died,  and  had  on  his  person  at  the  time,  $20,500,  part  of  which 


122  TRUSTS.  (Part  2 

(something  over  $10,000)    was  obtained  on  the   sale  of  the  Wilson 
cattle  and  the  balance  from  the  sale  of  other  cattle  in  which  the  AVil- 
sons  were  not  interested.     All  this  money  the  widow  after  his  death, 
deposited  in  the  bank  in  her  name,  and  after  the  executor  qualified 
she  gave  him  a  check  for  the  whole  amount  which  she  so  received  and 
placed  in  the  bank.    The  court  stated  the  claim  on  behalf  of  appellants 
as  follows   (p.  245)  :  "The  argument  is,  that  plaintiffs,  to  recover  in 
this  case,  must  prove  that  Alexander  sold  the  Wilson  cattle  and  re- 
tained the  identical  money  received  from  the  sale  of  the  cattle,  separate 
and  unmixed  with  other  funds,  and  that  such  money,  unmixed,  passed 
into  the  hands  of  the  defendant  after  the  death  of  Alexander,  but  if 
the  money  was  mixed  with  other  funds  by  Alexander  before  he  re- 
turned home,  or  was  commingled  with  other  money  by  his  wife  after 
his  death,   no   recovery  can  be  had  by  the  plaintiffs."     The   court 
held  that  the  portion  of  the  proceeds  received  for  the  cattle  of  the 
Wilsons  could  be  traced  and  identified  as  their  particular  property  and 
might  be  followed  into  the  hands  of  the  executor,  and  that  they  had 
a  preferential  claim  thereto  over  general  creditors.     The  court  said,  if 
Alexander  had  disposed  of  the  money  in  his  life-time  the  case  would 
have  been  different,  but  as  he  retained  it  and  his  executor  took  it, 
the  Wilsons  were  justly  and  equitably  entitled  to  a  perference.    It  was 
decided  in  In  re  Hallett's  Estate,  13  L.  R.  Ch.  D.  696,  that  money  held 
in  a  fiduciary  capacity  by  one  who  places  it  in  a  bank  can  be  recovered 
from  the  bank,  although  mixed  with  the  depositor's  own  money;  that 
the  person  for  whom  he  held  the  money  can  follow  it  and  has  a  charge 
on  the  balance  in  the  banker's  hands,  notwithstanding  the  mingling  of 
the  funds.     The  presumption  in   such  a  case  is,  that  the  money  drawn 
out  by  the  depositor  is  his  own,  even  if  the  trust  money  and  his  own 
are  in  one  account,  rather  than  that  he  had  disregarded  his  trust  and 
violated  his  duty.     .     .     . 

In  this  case  the  money  was  received  March  15,  1893,  and  the  failure 
was  in  the  following  June,  and  the  evidence  supported  by  the  legal 
presumption  establishes  the  identity  of  the  fund  and  shows  what  be- 
came of  it.  If  it  had  been  shown  that  the  trust  fund  was  withdrawn 
or  actually  dissipated,  so  that  none  of  it  remained  in  the  bank,  the  rule 
would  necessarily  be  different.  If  the  fund  has  once  been  disposed  of, 
no  charge  can  be  made  against  the  general  estate  in  the  hands  of  the 
assignee  to  the  exclusion  of  other  creditors,  but,  as  we  have  seen,  the 
fact  that  the  same  bills  were  not  retained  or  that  the  fund  is  traced 


Cll.    5)  EESULTIXG  AND    CONSTRUCTIVE    TRUST.  123 

into  a  larger  sum  of  money  in  the  same  bank  does  not  destroy  its 
identity.  Equity  lays  a  charge,  in  such  a  case,  on  the  fund  into  which 
the  trust  money  is  traced,  and  not  on  the  general  estate  of  the  trustee. 
The  only  question  here  is  what  is  a  sufficient  identification,  and  the 
rule  is,  that  if  it  can  be  shown  the  money  is  in  a  specified  place,  equity 
will  take  out  of  that  place  enough  money  to  satisfy  the  trust.  In  this 
case,  we  think  that  the  trust  fund  w^as  traced  and  identified  by  legit- 
imate evidence  and  rules  of  law  for  ascertaining  its  identity. 

The  decree  of  the  superior  court  of  Cook  county  and  the  judgment 
of  the  x'Vppellate  Court  are  reversed,  and  the  cause  is  remanded  to 
the  superior  court,  with  directions  to  order  the  payment  by  the  re- 
ceiver to  the  petitioners  of  the  amount  of  $1152.66  cash  remaining  in 
the  bank  and  received  by  him  when  he  took  possession. 


RICHARDSON  v.   NEW  ORLEANS   DEBENTURE  REDEMP- 
TION CO. 

(United  States  Circuit  Court  of  Appeals,  1900,  102  Fed.  780.) 

Shelby,  C.  J.  The  bill  in  this  case  was  filed  by  the  New  Orleans 
Debenture  Redemption  Company,  Limited,  against  F.  L.  Richardson, 
as  receiver  of  the  American  National  Bank,  to  collect  $1,658.60  which 
the  company  had  deposited  in  the  bank.  .  .  .  The  company  bases 
its  right  to  recover  the  money  on  the  alleged  fact  that  the  bank  had 
received  it  as  a  deposit  when  it  was  hoplessly  insolvent,  and  tuider 
such  circumstances  as  to  make  the  receipt  of  it  a  fraud.     .     .     . 

Ordinarily,  when  funds  are  deposited  in  a  bank,  the  relation  of 
debtor  and  creditor  immediately  arises  between  the  banker  and  the 
depositor.  The  money  deposited  becomes  the  property  of  the  banker. 
He  has  the  right  to  use  it,  but  must  pay  the  debt  to  the  depositor  by 
cashing  his  checks.  When  the  banker  obtained  the  deposit  by  com- 
mitting a  fraud,  as  by  receiving  it  after  hopeless  insolvency,  the  rela- 
tion between  the  parties  is  very  different.  The  fraud  avoids  the  im- 
plied contract  between  the  parties  that  would  arise  in  its  absence,  and 
having  barred  contract,  a  trust  is  the  equitable  result.  The  fraud 
itself  gives  no  lien.  The  fraud  prevents  the  money  deposited  from  be- 
coming the  property  of  the  banker,  and  therefore  prevents  the  relation 


124  TRUSTS.  (Part  2 

of  debtor  and  creditor  arising  between  the  parties.     As  the  money 
does  not  become  the  property  of  the  banker  it,  of  course,  remains  the 
property  of  the  depositor.     In  the  banker's  hands,  therefore,  it  is  a 
trust  fund,— as  much  so  as  if  it  had  been  a  special  deposit.    The  money 
which  the  banker  has  received  in  due  course  of   honorable  business 
before  insolvency  has  become  h'is  property,  and  he  the  debtor  of  those 
who  deposited  it.     Now,  if  the  banker,  having  money  in  his  hands, 
fraudulently  receives  other  money,  and  mingles  it  with  the  moneys  on 
hand,  can  the  defrauded  depositor  reclaim  his  money?     That  is  the 
question  presented  by  this  case.     The  bank  received  $1,658.60  of  the 
appellee's  money  just  before  it.  closed.     It  was  received  under  circum- 
stances of  fraud  so  that  it  remained  the  property  of  the  appellee.     It 
passed  with  the  other  funds  to  the  hands  of  the  receiver;  or,  if  the 
identical  money  did  not  pass  to  the  receiver,  the  sum  turned  over  to 
the  receiver  was  increased  exactly  $1,658.60  by  the  appellee's  deposit. 
This  is   clear  because   if,   after   receiving  the   appellee's   deposit   and 
placing  it  with  the  general  funds,  payments  were  made  out  of  the  mass 
of  money  during  the  business  of  the  day,  it  is  immaterial  whether  the 
the  identical  dollars  deposited  by  the  appellee  were  paid  out  or  not. 
The  amount  that  went  into  the  hands  of  the  receiver  was.  by  the  de- 
posit of  the  appellee,  increased  to  the  amount  of  the  deposit  made  by 
it.     If  we  find  that  the  transaction  between  the  appellee  and  the  bank 
created  a  trust  or  lien  on  the  funds  of  the  bank  with  which  the  appel- 
■  lee's  deposit  was  mingled,  the  trust  or  lien  extended  to  the  whole  mass 
of  money,  and  the  paying  out  of  part  of  it  would  not  remove  the  charge 
from  the  remainder.     The  question,  then,  is   reduced  to  this.     If  a 
banker  takes  $1,000  not  his  own,  and  mixes  the  sum  with  $10,000  of 
his  own  money,  can  the  owner  of  the  $1,000  reclaim  it?     Has  he,  in 
equity,  a  charge  on  the  whole  to  the  amount  of  his  money  which  has 
gone  into  it?     Formerly,  it  was  held  that  he  had  not.     The  equitable 
right  of  following  misapplied  money,  it  was  said,  depended  on  identi- 
fying it,  the  equity  attaching  to  the  very  property  misapplied.     Money, 
it  was  said,  had  no  earmarks,  and  the  tracing  of  the  fund  would  .fail. 
This  view  was  manifestly  inequitable  and  unjust,  and  so,  finally,  it 
was  held  that  confusion  by  commingling  does  not  destroy  the  equity, 
but  converts  it  into  a  charge  upon  the  entire  mass,  giving  to  the  party 
injured  by  the  unlawful  diversion  of  the  fund  a  priority  of  right  over 
the  other  creditors  of  the  possessor  and  wrongdoer.     .     .     • 


Cll.    5)  KESULTINO  AJNL     CONSTRUCTIVE    TRUST.  125 

Sir  George  Jessel,  master  of  the  rolls,  in  the  case  of  Knatchbull  v. 
Hallett,  13  Ch.  Div.  696,  707,  reviewed  the  English  cases  on  this  sub- 
ject. He  shows  the  struggle  of  the  able  judges  of  the  law  courts  over 
the  earmarking  of  money,  and  that  finally  Lord  Ellenborough  throws 
over  the  doctrine  as  to  money  not  earmarked  not  being  followed.  We 
cannot  take  space  to  cite  and  quote  the  many  case  commented  on  by 
the  master  of  the  rolls.  The  opinion  is  marked  by  a  keen. sense  of  equity 
and  strong  common  sense.  On  the  direct  point  in  question  here  he 
says : 

"I  have  only  to  advert  to  one  other  point,  and  that  is  this:  Suppos- 
ing, instead  of  being  invested  in  the  purchase  of  land  or  goods,  the 
moneys  were  simply  mixed  with  other  moneys  of  the  trustee, — using 
the  term  again  in  its  full  sense,  as  including  every  person  in  a  fiduciary 
relation.  Does  it  make  any  difiference  according  to  the  modern  doc- 
trine of  equity?  I  say,  none.  It  would  be  very  remarkable  if  it  were 
to  do  so.  Supposing  the  trust  money  was  1,000  sovereigns,  and  the 
trustee  put  them  into  a  bag,  and  by  mistake,  or  accident,  or  otherwise, 
dropped  a  sovereign  of  his  own  into  the  bag.  Could  anybody  suppose 
that  a  judge  in  equity  would  find  any  difficulty  in  saying  that  the  cestui 
que  trust  has  a  right  to  take  1,000  sovereigns  out  of  that  bag?  I  do 
not  like  to  call  it  a  charge  of  1,000  sovereigns  on  the  1,001  sovereigns, 
but  that  is  the  etTect  of  it.     I  have  no  doubt  of  it."     .     .     . 

There  should  be  no  question  about  this  doctrine  on  principle.    If 
one's  money  is  invested  in  land,  the  title  being  taken  in  another's  name, 
■  equity  creates  a  resulting  trust  in  the  land  as  against  the  wrongdoer. 
If  an  agent,  bailee,  or  trustee  invests  another's  money  in  personal  prop- 
erty, a  trust  results.    If  one's  money  is  lent,  and  a  note  or  bond  taken, 
the  owner  of  the  money  can  have  a  lien  or  trust  declared  on  the  note 
or  bond  to  secure  his  money  so  used.     Numerous  cases   show  that 
money  can  be  traced  into  other  assets,  notes,  bonds,  and  stocks.    There 
is  no  good  reason  for  not  applying  the  same  doctrine  to  money,  the 
measure  and  representative  of  all  property.     If  one's  money  is  used 
with  other  money  in  buying  a  bond,  equity  can  fasten  a  lien  on  the 
bond,  and  sell  it  to  reimburse  the  one  whose  money  has  been  so  used. 
So,  we  think,  if  one's  money  is  wrongfully  mingled  with  a  mass  of 
money,  that  equity  can   direct  the  possessor  and  wrongdoer,   or  his 
successor,  to  take  out  of  the  mass  a  sum  sufficient  to  make  restitution. 
The  decree  of  the  circuit  court  is  affirmed. 


126  TRUSTS.  (Part  2 


BOHLE  V.  HASSELBROCH. 

(New  Jersey  Court  of  Chancery,  1901,  64  N.  J.  Eq.  334,  51  Atl.  508.) 

Dixon,  J.  ...  It  is  clear  that  Mrs.  Hasselbroch  committed 
a  breach  of  the  trust,  when  she  used  the  trust  funds  in  buying  real 
estate,  and  took  the  title  to  herself  without  providing  any  bond  and 
mortgage  as  a  first  lien  in  favor  of  the  trust  estate,  as  directed  by  the 
will  of  her  deceased  husband,  and  the  question  is,  what  equitable 
situation  was  thereby  created. 

Several  settled  doctrines  of  courts  of  equity  are  pertinent  to  this 
inquiry. 

It  is  a  fundamental  principle  in  regard  to  trust  estates  that  the 
trustee  shall  derive  to  himself  no  gain,  benefit  or  advantage  by  the  use 
of  the  trust  funds ;  whatever  of  profit  may  be  made  shall  belong  to  and 
become  parcel  of  the  trust  estate.  McKnight's  Executor  v.  Walsh,  9 
C.  E.  Gr.  498.  An  outgrowth  of  this  principle  is  that,  as  between 
cestui  que  trust  and  trustee  and  all  persons  claiming  under  the  trustee 
otherwise  than  by  purchase  for  valuable  consideration  without  notice, 
all  property  belonging  to  the  trust,  however  much  it  may  be  changed 
or  altered  in  its  nature  or  character,  continues  to  be  subject  to  or 
affected  by  the  trust.  Pennell  v.  Deffell,  4  De,  Cx.  M.  &  G.  372,  388. 
As  a  concomitant  of  the  rule  just  stated,  and  to  effecutate  fully  the. 
fundamental  principle,  another  rule  exists,  that,  when  the  trustee  has 
improperly  changed  the  form  of  the  estate,  the  cestui  que  trust  may 
elect  whether  they  will  accept  the  estate  in  its  new  form  or  will  hold 
the  trustee  responsible  for  it  in  its  original  condition.  Ferris  v.  Van 
Vechten,  73  N.  Y.  113.  If  the  improper  conversion  turns  out  to  be 
advantageous,  they  may  adopt  it  and  take  the  profit;  if  it  results  in 
loss,  they  may  insist  on  having  an  equivalent  for  the  estate  as  it  was 
before  the  change ;  and  when  the  cesfitis  que  trust  are  infants,  the 
court  will  deal  with  the  matter  as  it  shall  consider  best  for  their  in- 
terest. Holcomb  V.  Executor  of  Holcomb,  3  Stock.  281.  This  right 
of  election  by  the  cestiiis  que  trust  is  upheld  by  courts  of  equity  in 
many  cases  where  there  has  been  misconduct  on  the  part  of  the  trustee, 
as  may  be  seen  by  reference  to  Fox  v.  Mackreth,  1  Lead.  Cas.  Eq.  115, 
and  has  been   fully  approved  by  this  court.     Mulford  v.   Bowen,    1 


Ch,    5)  EESULTING  AND    COXSTRUCTWE    TRUST.  127 

Stock,  797;  Stewart  v.  Lehigh  Valley  Railroad  Co.,  9  Vr.  505.  It  is 
enforced  in  cases  like  the  present,  for  if  a  trustee  purchases  property 
with  trust  funds  in  his  hands,  and  takes  title  in  his  own  name  and  for 
his  own  benefit,  he  will,  at  the  option  of  the  ccstuis  que  trust,  be  de- 
clared to  hold  it  in  trust  for  them.  Durling  v.  Hammar,  5  C.  E.  Gr. 
220;  Story  Eq.  Jur.  1260,  1262.  And  if,  in  such  a  purchase,  he  has 
mixed  up  moneys  of  his  own  with  the  trust  funds,  a  trust  will  still 
result  to  the  cestuis  que  trust  at  their  option ;  and  the  burden  will  be 
on  the  trustee  to  show  the  amount  of  his  own  fimds  used  in  the  pur- 
chase, and  so  far  as  he  fails  to  make  that  distinction  the  court  holds 
the  property  bound  by  the  trust.  Russell  v.  Jackson,  10  Hare  204,  213 ; 
In  re  Pumfrey,  L.  R.  22  Ch.  Div.  255;  Perry,  Trusts,  §  128;  2  Pom. 
Eq.  Jur.  §  1076  (2). 

In  accordance  with  these  doctrines  we  think  that  the  complainants, 
when  their  right  to  the  possession  of  the  trust  estate  matured  by  the 
death  of  their  mother,  were  entitled,  upon  showing  that  the  trust 
funds  had  formed  a  considerable  part  of  the  purchase-money  by  which 
their  mother  had  acquired  title  to  the  Hoboken  lots,  to  elect  whether 
they  would  claim  a  lien  upon  the  lots  for  the  amount  of  trust  funds 
used  in  the  purchase,  or  would  claim  the  lots,  subject  to  be  charged, 
in  favor  of  the  personal  representative  s  of  their  mother,  with  so  much 
of  the  purchase-money  as  consisted  of  her  own  funds,  and  that,  in 
endeavoring  to  ascertain  how  much  was  trust  money  and  how  nuich 
was  the  trustee's  own,  every  reasonable  intendment  should  be  made 
against  the  trustee  through  whose  fault  the  truth  had  become  obscure. 

Since  the  complainants,  being  in  possession  of  the  lots,  have  filed 
their  bill  in  equity  to  have  it  decreed  that  by  their  trustee's  purchase 
they  became  owners  of  the  fee  in  remainder  after  their  mother's  life 
estate,  they  have  thereby  elected  to  take  the  real  estate  in  lieu  of 
the  trust  money  invested  therein,  and  to  hold  it  charged  only  with 
their  mother's  own  monev  so  invested.     .     .     . 


PIKES  PEAK  CO.  V.  PFUNTNER. 

(Supreme  Court  of  Michigan,  1909,  158  Mich.  412,  133  N.  W.  19.) 

The  defendant  Beller  on  November  1,  1*W)1,  leased  to  uiic  Ingcrsoll 
d  parcel  of  land  situated  near  the  Ik'lle  Jsle  bridge  in  the  cily  of  De- 


128  TRUSTS.  (Part  2 

triot  for  10  years  at  an  annual  rental  of  $1,500.  The  lease  was  as- 
signed to  the  Detroit  Amusement  Company.  That  company  construct- 
ed a  roller  coaster  and  other  amusement  appliances,  and  operated  them 
until  September,  1906,  when  the  roller  coaster  was  destroyed  by  fire. 
The  sole  property  of  the  company  were  the  lease  and  the  amusement 
appliances  on  the  land.  Defendant  Pfuntner  was  a  large  stockholder, 
and  from  1904  to  October  15.  1906,  was  its  general  manager,  secretary, 
and  treasurer,  a  member  of  its  board  of  directors,  and  a  member  of 
the  executive  committee,  which  was  composed  of  three  of  the  direc- 
tors.    .     .     . 

On  the  8th  day  of  October.  1906,  while  Pfuntner  was  an  officer  and 
manager  of  the  company,  as  above  stated,  he  obtained  from  Mr.  Beller 
a  lease  of  the  premises  for  five  years  from  November  1,  1911;  that 
being  the  time  at  which  the  first  lease  would  expire..  Pfuntner  did 
not  state  to  his  employer  or  any  of  its  officers  his  intention  to  lease  the 
property  at  the  expiration  of  the  lease  then  in  existence,  and  none  of 
them  were  aware  of  his  purpose.  On  the  contrary,  he  intentionally 
concealed  it  from  them.  After  obtaining  this  lease,  Pfuntner  sold  out 
all  his  stock  in  the  company.  Upon  learning  that  Pfuntner  had  ob- 
tained this  lease,  the  directors  held  a  meeting  and  passed  a. resolution 
reciting  that  Pfuntner  had  obtained  a  lease,  declaring  that  he  was  at 
the  time  an  agent  of  the  company  and  acted  in  it  behalf,  and — 

"Now,  therefore,  be  it  resolved  that  the  Detroit  Amusement  Company 
declares  that  the  said  Charles  H.  Pfuntner,  in  the  procuring  of  said  lease, 
was  the  agent  of  this  "company,  and  acted  in  behalf  of  this  company;  that 
this  company  hereby  ratifies  and  confirms  the  actions  of  its  said  agent, 
Charles  H.  Pfuntner,  in  obtaining  a  lease  of  said  premises,  and  elects  to 
treat  the  said  lease  so  obtained  as  the  property  of  the  Detroit  Amusement 
Company,  to  the  same  extent  as  though  the  name  of  the  Detroit  Amusement 
Company  were  contained  in  said  lease  as  lessee. 

"And  be  it  further  resolved  that  a  copy  of  this  resolution  be  served  upon 
Jacob  Beller  and  Charles  H.  Pfuntner." 

The  complainant  then  filed  this  bill,  praying  that  said  lease  be  held 
to  be  the  property  of  the  complainant,  as  assignee  of  the  Detriot 
Amusement  Company,  to  the  same  extent  as  though  named  in  the 
lease  as  lessee,  and  that  the  defendant  be  decreed  to  hold  his  lease  as 
trustee  for  the  company.  The  case  was  heard  upon  pleadings  and 
proofs  taken  in  open  court,  and  decree  entered  for  complainant.  The 
decree  also  required  complainant  to  give  bond  in  the  sum  of  $10,000 
to  Pfuntner  as  a  guaranty  against  liability  to  Mr.  Beller. 


Cll.    5)  EESULTIXG  AND    CONSTRUCTIVE    TRUST.  12D 

Grant,  J.  (after  stating  the  facts).  The  principles  of  law  con- 
troIHng  this  case  are  too  well  settled,  both  by  authority  and  reason, 
to  require  much  discussion.  One  occupying  a  confidential  and  fiduciary 
relation  to  another  is  held  to  the  utmost  fairness  and  honesty  in  deal- 
ing with  the  party  to  whom  he  stands  in  that  relation.  Torrey  v.  Ce- 
ment Co.,  ante,  348  (122  N.  W.  614). 

While  it  is  true  the  tenant,  in  the  absence  of  express  agreement,  has 
no  enforceable  right  to  renewal  of  the  lease,  yet  it  is  natural  that, 
other  things  being  equal,  the  landlord  would  lease  to  his  present  tenant, 
and  that  the  tenant  would  prefer  to  renew  the  lease.  The  expectancy 
is  recognized  by  the  law  as  a  valuable  asset  belonging  to  the  tenant. 
The  law  does  not  permit  an  agent,  officer,  or  trusted  employee  to  take 
it  from  the  tenant  to  whom  he  owes  the  duty  to  protect  and  advance 
his  interest.  Robinson  v.  Jewett.  116  N.  Y.  40  (22  N.  E.  224),  and 
the  many  cases  cited;  Crumley  v.  Webb,  44  Mo.  444  (100  Am.  Dec. 
304)  ;  Keech  v.  Sanford,  1  White  &  T.  Lead.  Cas.  62  Note ;  Davis  v. 
Hamlin.  108  111.  39  (48  Am.  Rep.  541). 

This  is  because  of  the  wholesome  rule  that — 

"Whenever  one  person  is  placed  in  such  relation  to  another,  by  the  act 
or  consent  of  that  other,  or  the  act  of  a  third  person,  or  of  the  law,  that  he 
becomes  interested  for  him  or  interested  with  him  in  any  subject  of  property 
or  business,  he  is  prohibited  from  acquiring  rights  in  that  subject  antagonistic 
to  the  person  with  whose  interests  he  has  become  associated.  Keech  v. 
Sanford,  mpra.  Except  with  the  full  knowledge  and  consent  of  his  princi- 
pal, an  agent  authorized  to  buy  for  his  principal  cannot  buy  of  himself.  An 
agent  authorized  to  sell  cannot  sell  to  himself.  An  agent  authorized  to  buy 
or  sell  for  his  principal  cannot  buy  or  sell  for  himself;  nor  can  an  agent 
take  advantage  of  the  knowledge  acquired  of  his  principal's  business  to  make 
profit  for  himself  at  his  principal's  expense.  The  same  rule  applies  to  leases 
and  other  similar  transactions."     Mechem's  Outlines  of  Agency,  §  148. 

It  is  no  defense  for  defendant  Pfuntner  that  the  company  for  which 
he  was  acting  was  involved  in  financial  difficulties  and  was  adjudicated 
a  bankrupt.  This  expectancy  belonged,  not  only  to  the  tenant,  but  to 
those  to  whom  the  lease  might  be  assigned.  The  original  lessee  and 
his  assignees  have  continued  to  pay  the  rent,  and  (he  complainant,  as 
we  infer  from  the  record,  has  rcbiu'lt  the  structure  at  considerable 
expense.  Pfuntner  did  not  obtain  this  lease  with  the  knowledge  or 
consent  of  the  party  for  which  he  was  agent,  manager,  and  a  dircclor. 
It  follows  that  he  holds  the  lease  in  trust  for  complainanl. 

The  decree  is  affirmed,  with  costs. 

2  Eq.— 9 


130  TRUSTS.  (Part  2 


FRAZIER  V.  JEAKINS. 

(Supreme  Court  of  Kansas,  1902,  64  Kan.  615,  68  Pac.  24.) 

DosTER^  C.  J.  .  .  .  The  sole  question  in  the  case  relates  to  the 
validity  of  the  guardian's  sale  and  deed  of  the  land  of  her  ward  to 
her  husband,  made,  as  before  stated,  upon  fair  consideration,  and  free 
from  actual  fraud.  Are  they  valid?  If  not,  are  they  of  the  class 
denominated  "void,"  and,  therefore,  subject  to  collateral  attack?  Our 
judgment  is  that  they  are  void,  and  their  nullity  being  known  to 
Frazier,  the  purchaser,  no  title  passed  to  him,  and,  therefore,  the  col- 
lateral action  will  lie. 

Nothing  in  the  law  of  fiduciary  trusts  is  better  settled  than  that  the 
trustee  shall  not  be  allowed  to  advantage  himself  in  dealings  with  the 
trust  estate.  He  shall  not  be  allowed  to  serve  himself  under  the  pre- 
tense of  serving  his  cestui  que  trust.  The  most  usual  way  in  which 
evasions  of  this  salutary  rule  are  attempted  is  in  purchases  of  the  trust 
estate  by,  or  in  the  interest  of,  the  trustee.  That  such  purchases  shall 
not  be  allowed  the  realization  of  their  purpose  is  the  universal  holding 
of  the  courts,  and  a  citation  to  the  multitudinous  decisions  would  en- 
cumber an  opinion  more  than  it  would  elucidate  the  rule.  A  large 
number  of  the  cases  are  collected  in  the  notes  to  Tyler  v.  Herring,  19 
Am.  St.  Rep.  263  (67  Miss.  169,  6  South.  840)  ;  Tyler  v.  Sanborn,  15 
Am.  St.  Rep.  97  (128  111.  136,  21  N.  E.  193,  4  L.  R.  A.  218)  ;  Wilson 
V.  Brookshire,  9  L.  R.  A.  792  (126  Ind.  497,  25  N.  E.  131)  ;  and  this 
court,  in  Webb  v.  Branner,  59  Kan.  190,  52  Pac.  429,  recently  added 
another  to  the  list.  Nor,  in  such  cases,  does  the  fact  that  the  sale  and 
purchase  were  bona  fide  and  upon  full  consideration  avail  to  con- 
stitute an  exception  to  the  rule.  That  was  distinctly  so  declared  in 
Webb  V.  Branner,  supra,  in  which  it  was  said : 

"It  was  shown  that  a  fair  price  was  obtained  for  the  lot,  but  there  being 
a  manifest  conflict  between  the  duties  of  the  trustee  and  his  personal  in- 
terests, the  courts,  for  the  purpose  of  removing  all  opportunity  for  fraud, 
generally  hold  such  transfers  to  be  void,  whether  they  appear  to  be  fair  or 
not." 

The  above-quoted  remarks  imply  that  there  may  be,  perhaps,  ex- 
ceptions to  the  rule,  but  we  know  of  none.    In  fact,  the  main  rule  that 


Ch.    5)  KESULTIXG  AXD    CONSTRUCTIVE    TRUST.  131 

a  trustee  may  not  profit  himself  out  of  the  trust  estate  is  no  better 
settled  than  the  subsidiary  one  that  lack  of  fraud  in  the  trustee's 
dealings  will  not  validate  the  transaction.  The  fiduciary  relation  of 
trustee  and  cestui  que  trust  is  one  which  does  not  call  so  much  for 
rules  to  redress  accomplished  wrong  as  for  rules  to  prevent  its  ac- 
complishment. The  one  in  question,  therefore,  is  not  intended  to  be 
merely  remedial  of  wrong  actually  committed,  but,  rather,  to  be  pre- 
ventive, or  deterrent,  in  effect.  The  opportunities  which  are  open  to 
an  unfaithful  trustee  to  advantage  himself  out  of  the  trust  estate  are 
so  many  and  so  tempting,  and  the  condition  of  the  beneficiary  in  the 
trust  ordinarily  so  helpless  and  confiding,  that  the  law  gives  warning 
in  advance  against  all  transactions  out  of  which  it  is  possible  for  the 
former  to  make  gain  at  the  expense  of  the  latter.  Hence,  as  was  tersely 
and  wisely  said  by  Chief  Justice  Beasley,  in  Staats  v.  Bergen,  17  N.  J. 
Eq.  554:  "So  jealous  is  the  law  upon  this  point,  that  a  trustee  may  not 
put  himself  in  a  position  in  which  to  be  honest  must  be  a  strain  on  him." 
Do  the  foregoing  considerations  apply  to  a  sale  by  a  guardian  of 
the  ward's  land  to  the  guardian's  husband  or  wife,  as  the  case  may  be? 
We  have  no  hesitation  in  alarming  that  they  do.  It  is  true  that  the 
common-law  fiction  of  the  legal  identity  of  the  husband  and  wife  and 
the  very  nearly  complete  merger  of  the  latter  in  the  former  does  not 
now  have  recognition.  In  this  state,  as  allowed  by  statute,  the  wife 
may  contract  with  her  husband.  They  may  own  separate  estates  free 
from  any  present  claim  of  interest  by  one  in  the  property  of  the 
other — that  is,  as  against  the  other ;  but  it  is  not  true  that,  as  to  their 
respective  possessions,  they  are  srangers  in  such  sense  as  to  take  a 
trustee's  sale  by  one  to  the  other  from  out  the  operation  of  the  rule  in 
question.  Upon  the  death  of  either  of  them,  one-half  of  his  or  her 
property  descends,  under  the  statute,  to  the  survivor,  and  under  the 
statute  neither  one,  without  the  other's  consent,  can,  by  will,  devise 
more  than  one-half  of  his  or  her  property.  It  is  true  the  interest  ot 
one  in  the  property  of  the  other  is  contingent  and  uncertain,  and  de- 
pendent upon  survivorship.  It  is  true  that  the  interest  of  the  one  in 
the  land  of  the  other  is  not  of  the  character  of  any  of  the  estates  known 
to  the  common  law,  but  it  nevertheless  possesses  the  elements  of  prop- 
erty. This  was  distinctly  so  ruled  in  I'.usenbark  v.  Buscnbark,  .1^  Kan. 
572,  7  Pac.  254;  and,  on  the  strength  of  the  quality  of  properly  at- 
taching to  the  inchoate  interest  of  a  wife  in  her  husband's  land,  she 


132  TRUSTS.  (Part  2 

was  allowed  in  that  case  to  maintain  an  action  to  prevent  its  fraudulent 
alienation. 

However,  over  and  beyond  that  property  interest  which  husband  and 
wife  have  in  each  other's  estate,  and  which  possesses  the  element  of 
pecuniary  value,  there  is  a  larger  consideration.  It  was  well  expressed 
by  counsel  for  defendant  in  error,  who  said : 

"The  affection  existing  between  husband  and  wife,  the  marital  relation 
which  in  a  sense  makes  them  one,  the  implicit  confidence  which  each  must 
have  in  the  other,  their  natural  desire  for  each  other's  material  prosperity, 
the  relation  which  enables  one  to  derive  and  enjoy  personal  comfort  and 
pleasure  from  the  property  of  the  other,  independent  of  the  question  of 
direct  or  indirect  ownership  in  such  property,  are  all  so  well  recognized 
in  law  and  understood  by  all  civilized  people,  that  it  would  be  arguing 
against  the  experience  of  centuries  to  contend  that  one  would  not  be  in- 
terested in  the  welfare  of  the  other,  and  do  all  that  could  be  done  to  enhance 
the  pecuniary  interests  of  the  other;  therefore,  by  reason  of  the  relation,  no 
guardian  could  be  impartial  in  the  sale  to  husband  or  wife  of  the  property 
of  the  ward."     .     .     . 


SCHOLLE  V.  SCHOLLE. 

(New  York  Court  of  Appeals,  1886,  101  N.  Y.  167,  4  N.  E.  334.) 

EarIv,  J.  .  .  .The  general  rule  is  not  disputed  that  the  purchase 
by  a  trustee  directly  or  indirectly  of  any  part  of  a  trust  estate  which 
he  is  empowered  to  sell,  as  trustee,  whether  at  public  auction  or  private 
sale  is  voidable  at  the  election  of  the  beneficiaries  of  the  trust ;  and  this 
rule  will  be  enforced  without  regard  to  the  question  of  good  faith  or 
adequacy  of  price,  and  whether  the  trustee  has  or  has  not  a  personal 
interest  in  the  same  property.  Nor  is  it  sufficient  to  enable  a  trustee 
to  make  such  a  purchase  that  the  formal  leave  to  buy,  which  is  usually 
granted  to  the  parties  in  a  foreclosure  or  partition  sale,  has  been  in- 
serted in  the  judgment.  Such  a  provision  is  inserted  merely  to  obviate 
the  technical  rule  that  parties  to  the  action  cannot  buy,  and  is  not  in- 
tended to  determine  equities  between  the  parties  to  the  action,  or  be- 
tween sUch  parties  and  others.  (Fulton  v.  Whitney,  66  N.  Y.  548;  Tor- 
rey  v.  Bank  of  Orleans,  9  Paige,  649;  Conger  v.  Ring,  11  Barb.  356.) 
But  where  the  trustee  has  an  interest  to  protect  by  bidding  at  the  sale 
of  the  trust  property,  and  he  makes  special  application  to  the  court  for 
permission  to  bid,  which,  upon  the  hearing  of  all  the  parties  interested, 


Ch.    5)  RESULTING   AND    COXSTRUCTIVE    TRUST.  133 

is  granted  by  the  court,  then  he  can  make  a  purchase  which  is  vahcl 
and  binding  upon  all  the  parties  interested,  and  under  which  he  can 
obtain  a  perfect  title.  (De  Caters  v.  Chaumont,  3  Paige,  178.)  .  .  . 
Here,  upon  notice  to  all  the  beneficiaries,  an  order  was  made  allowing 
these  appellants  to  bid.  After  they  had  made  their  bids  and  signed 
the  terms  of  sale,  a  further  hearing  was  had  upon  notice  to  all 
the  parties  as  to  the  fairness  of  the  sales  and  the  adequacy  of  the  prices, 
and  the  sales  were  approved  and  confirmed  by  the  court.  Under  such 
circumstances  there  can  be  no  doubt  that  these  appellants  would  get 
a  good  and  perfect  title  to  the  lands  purchased  by  them,  and  their 
title  would  be  good,  not  only  as  against  all  the  living  parties  to  the  suit, 
but  as  against  unborn  grandchildren,  if  any  such  should  hereafter  come 
into  being. 


FISCHLI  V.  DUMARESLY. 

(Kentucky  Court  of  Appeals,   1820,  3  A.   K.   Marsh,  23.) 

Boyle,  C.  J.  This  was  a  bill  filed  by  Dumaresly  against  Fischli,  to 
obtain  a  conveyance  of  a  moiety  of  four  lots  in  the  town  of  Louisville. 
He  alleges  that  he  and  Fischli  agreed  to  jointly  purchase  the  lots,  and 
that  Fischli  was  to  advance  the  whole  of  the  purchase  money,  and  to  re- 
ceive from  him  interest  for  his  half  thereof,  until  it  was  repaid.  That 
Fischli  accordingly  made  the  purchase  of  the  lots ;  but  instead  of  taking 
the  conveyance  to  them  jointly,  took  it  to  himself,  only,  and  refuses  to 
convey  to  Dumaresly  a  moiety  of  the  lots,  notwithstanding  he  has 
oflfered  to  repay  one  half  of  the  purchase  money,  with  interest.  He, 
therefore,  prays  that  Fischli  may  be  decreed  to  convey,  etc. 

Fischli,  in  his  answer,  denies  that  he  made  the  purchase  for  the 
joint  benefit  of  Dumaresly  and  himself.  He  admits  that,  at  the  in- 
ception of  the  negotiation,  he  conceived  the  idea  of  making  such  a 
purchase,  but  alleges  that  for  reasons,  which  he  states  in  his  answer, 
and  to  which  Dumaresly  assented,  he  declined  making  a  joint  jjur- 
chase,  and  contracted  in  his  own  name,  and  for  his  own  benefit ;  and 
he  pleads  and  relies  upon  the  statute  against  frauds  and  perjuries. 

The  court  below  decreed  Fischli  to  convey  a  moiety  of  the  lots,  and 
Dumaresly  to  repay  to  Fischli  one  half  of  the  purchase  money,  with 
interest;  and  to  that  decree,  Fi.schli  proseculcs  this  writ  of  error. 


134  TKUSTS.  (Part  2 

It  is  evident  that  the  decree  cannot  be  sustained.  The  parol  testi- 
mony in  the  cause  strongly  conduces,  indeed,  to  prove  the  agreement 
alleged  in  the  bill ;  but  that  agreement  was  never  reduced  to  writing ; 
and  a  mere  verbal  or  unwritten  contract  for  lands  is  remediless,  ac- 
cording to  the  express  provisions  of  the  statute  against  frauds  and 
perjuries. 

There  may,  no  doubt,  be  an  equity  resulting  from  facts,  or  the 
relation  of  the  parties,  which,  notwithstanding  the  statute,  may  be 
enforced :  for  it  is  only  to  express  contracts  that  the  provisions  of  the 
statute  apply.  As,  for  example,  where  the  conveyance  of  land  is 
taken  in  the  name  of  one,  and  the  purchase  money  appears  to  have 
been  paid  by  another,  there  will  a  trust  result,  by  implication,  to  the 
latter,  which  is  not  within  the  influence  of  the  statute.  But  in  this 
case,  there  is  no  fact  from  which  a  trust  can  result  to  Dumaresly.  The 
whole  purchase  money  is  admitted  to  have  been  paid  by  Fischli ;  and 
if  Dumaresly  has  any  equity,  it  must  arise  exclusively  from  the  ex- 
press contract  of  the  parties,  which  not  being  in  writing,  cannot  be 
enforced,  according  to  the  provisions  of  the  statute. 

The  idea  suggested  in  the  argument,  that  Fischli  acted  as  the  agent 
of  Dumaresly  in  making  the  purchase  to  the  extent  of  a  moiety  of  the 
lots,  and  that  the  statute  does  not  require  the  authority  of  an  agent  to 
be  in  writing,  cannot  take  the  case  out  of  the  influence  of  the  statute. 
The  sufficiency  of  the  authority  of  Fischli  to  have  made  a  joint  pur- 
chase in  Dumaresly's  name  and  his  own,  is  not  called  in  question.  He 
has  not  done  so,  but  has  made  the  purchase  in  his  own  name;  and 
whether  he  had  an  authority  to  make  a  purchase  for  the  joint  benefit 
of  both,  or  not,  is  immaterial,  if  the  agreement  that  he  would  do  so 
cannot  be  enforced,  because  it  was  not  reduced  to  writing.     .     .     . 


SECTION  V.  TRANSFER  OF  TRUST  PROPERTY 


SMITH  V.  ALLEN. 

(Supreme  Court  of  Massachusetts,  1862,  87  Mass.  (5  Allen)  457.) 

Merrick,  J.  The  plaintiffs  are  the  surviving  partners  of  the  late 
firm  of  Smith,  Lougee  &  Co.,  of  San  Francisco.  The  estate  of  which 
they  seek  to  recover  possession  by  judgment  in  this  suit  against  the 


Ch.  5)  TRANSFER  OF  TRUST  PROPERTY.  135 

defendant,  was  purchased  by  Paige,  the  deceased  partner,  and  was 
paid  for  by  him  with  money  which  he  secretly  and  fraudulently  ab- 
tracted  from  the  funds  of  the  company.  The  company  is  now  insol- 
vent, and  the  plaintiffs  claim  to  have  a  right  to  recover  possession  of 
the  demanded  premises,  that  they  may  apply  the  avails  of  the  estate 
towards  the  payment  to  their  creditors  of  the  several  sums  due  to 
them.     .     .     . 

The  estate  thus  purchased  and  paid  for  by  Paige  with  the  money 
of  the  company  was  conveyed  by  him  to  the  defendant.  This  bill, 
therefore,  can  be  maintained  against  her  to  recover  the  possession  of 
it,  unless  she  was  a  purchaser  thereof  in  good  faith,  without  notice 
of  the  fraudulent  misconduct  of  Paige,  and  for  a  valuable  consider- 
ation. But  if  she  was  such  a  purchaser,  then  she  acquired  a  superior 
title  to  the  estate,  which,  having  become  absolutely  vested  in  her  by  the 
conveyance,  could  not  afterwards  be  defeated  by  the  creditors  of  her 
grantor,  2  Story  on  Eq.  §  1258,  1  lb.  108,  381. 

It  is  immaterial  at  w'hat  time  the  consideration  was  paid  or  passed, 
if  it  passed  before  she  had  any  notice  of  the  fraud,  and  before  any 
claim  of  title  was  set  up  or  asserted  against  her  by  the  surviving  part- 
ners, or  by  the  creditors  of  the  company.  For  it  is  a  well  settled 
principle  that  a  deed  which  is  voluntary  or  fraudulent  in  its  creation, 
and  voidable  by  creditors  or  subsequent  purchasers,  may  become  good 
and  indefeasible  by  matter  ex  post  facto.  4  Kent  Com.  (6th  ed.)  463. 
Sterry  v.  Arden,  1  Johns.  Ch.  261. 

Upon  examination  of  the  uncontroverted  evidence  produced  on  be- 
half of  the  defendant,  it  is  apparent  that  Paige  conveyed  the  demanded 
premises  to  her  to  induce  her  to  enter  into  an  engagement  to  marry 
him.  On  the  11th  of  April  1853,  his  wife,  Sarah  Ann  Paige,  died  at 
vSan  Francisco.  And  in  a  letter  bearing  date  the  24th  of  June  then 
next  following,  addressed  by  him  from  that  place  to  the  defendant, 
then  resident  in  this  state,  he  offered  himself  to  her  in  marriage.  He 
urged  her  acceptance  of  his  offer,  and  among  other  things  said,  "The 
estate" — referring  to  the  (jemanded  premises — "you  may  regard  as 
your  homestead,  and  I  trust  it  will  be  a  very  dear  spot  to  you,  the  same 
as  it  was  to  your  dear  Aunt  Sarah,  and  the  children  of  our  mutual 
love."  The  import  and  significance  of  this  proposal  cannot  be  mis- 
taken or  misunderstood;  it  was  manifestly  tendered  as  an  independent 
provision  for  her  support,  which  might  prevail  upon  and  induce  her 


136  TRUSTS.  (Part  2 

to  accede  to  his  wishes.  On  the  15th  of  the  next  ensuing  month  of 
July  he  wrote  to  his  agent  Goklshury,  enclosed  in  his  letter  a  power  of 
attorney  from  himself,  and  directed  him  to  make,  execute  and  deliver 
a  deed  of  the  demanded  premises  to  her.  Accordingly  Goldsbury,  in 
pursuance  of  the  power  and  of  the  directions  given  to  him,  executed 
the  deed,  which  was  delivered  to  and  accepted  by  her  on  the  8th  of  the 
following  month  of  September.  Of  course,  after  the  ofifer  which  had 
been  made  to  her,  she  perfectly  understood  the  object  and  purpose  of 
the  conveyance.  And  in  a  letter  bearing  date  the  29th  of  October — 
which  was  a  little  less  than  two  months  after  her  acceptance  of  the 
deed — written  and  addressed  by  her  to  Paige,  and  which  was  received 
by  him  upon  the  6th  day  of  the  ensuing  month  of  December,  on  which 
day  he  acknowledged  its  receipt,  she  distinctly  accepted  his  offer  and 
made  an  unqualified  promise  to  marry  him.  The  correspondence  be- 
tween the  parties  was  continued,  and  their  contract  to  marry  and  be 
married  to  each  other  remained  in  full  force  during  his  life.  Their 
marriage  was  prevented  by  his  death,  which  occurred  early  in  the  fol- 
lowing year,  in  Oregon,  where  he  went  on  a  journey  of  business  to 
which  he  had  alluded  in  one  of  his  previous  letters  to  her. 

It  is  not  alleged  or  pretended  that  the  defendant  had  any  knowledge 
or  suspicion  of  the  fraudulent  acts  of  Paige.  On  the  contrary,  it  is 
manifest  from  all  the  facts  and  circumstances  which  have  been  dis- 
closed in  the  case  that  she  believed  and  had  reasonable  cause  to  be- 
lieve that  he  was  a  man  of  wealth,  engaged  in  successful  and  pros- 
perous business,  and  that  throughout  the  wliole  transaction,  and  in 
contracting  her  engagement  to  him,  she  conducted  herself  in  perfect 
good  faith.  The  only  question  therefore  is,  whether  her  contract  and 
promise  to  marry  him  constituted  a  good  and  valuable  consideration  for 
the  estate  which  he  had  conveyed  to  her. 

There  is  no  doubt  that  marriage  is  a  valuable  consideration.  It 
has  always  been  so  regarded.  Chancellor  Kent  says  it  is  held  to  be  of 
high  consideration,  and  of  such  weight  and  force  that  a  marriage 
formally  solemnized  subsequently  to  the  conveyance  will  make  a  mere 
voluntary  deed  good  and  effectual,  and  will  fix  the  interest  in  the 
estate  conveyed  indefeasibly  in  the  grantee.  4  Kent,  Com.  (6th  ed.)  463. 
It  was  so  expressly  determined  in  the  case  of  Steery  v.  Arden,  above 
cited.  And  it  is  there  stated  by  the  court  that,  although  nothing  was 
said  by  the  parties  concerning  the  consideration  for  the  conveyance. 


Oh.  5)  TRANSFER  OF  TRUST  PROPERTY.  137 

either  at  the  time  of  the  solemnization  of  the  marriage,  or  in  the  nego- 
tiation which  preceded  it,  yet  the  law  will  presume  that  the  property 
conveyed  for  that  purpose  did  constitute  some  part  of  the  consideration 
which  induced  the  party  who  received  it  and  who  was  to  be  benefited 
by  it  to  enter  into  that  relation.     Huston  v.  Cantril,  11  T<eigh,   (^'a.) 
176.     If,  therefore,  the  defendant  had  been  actually  married  to  Paige 
on  the  29th  of  October  when  she  promised  to  marry  him.  she  would 
be  deemed  to  have  been  a  purchaser   for   a  valuable   consideration, 
and  would  be  held  to  have  taken  the  estate  conveyed  to  her,  free  and 
purged  of  any  fraud  against  his  partners  or  creditors  which  he  might 
have  committed.     Her  title  in  that  case  would  have  been  clear  and  in- 
defeasible.    And  in  reference  to  the  question  of  the  sufficiency  and 
value     of  the  consideration,  and  consequently  of  the  validity  of  the 
title  acquired  by  the  conveyance,  there  does  not  appear  to  be  any  real 
and  substantial  distinction  between  a  marriage   formally  solemnized, 
and  a  binding  and  obligatory  agreement,  which  has  been   fairly  and 
truly  and  above  all  suspicion  of  collusion  made,  to   form  such  con- 
nection   and   enter   into    that    relation.      All    the    consequences    of    a 
legal  obligation  accompany  such  an  agreement.     The  law  enforces  its 
performance  by  affording  an  effectual  remedy  against  the  party  who 
shall  without  legal  excuse  fail  to  fulfil  it.     But  a  contract  of  this  kind 
is  not  to  be  regarded  as  a  valuable  consideration,  merely  because  dam- 
ages commensurate  with  the  injury  may  be  recovered  of  the  party 
who  inexcusably  refuses  to  fulfil  it.     It  is  peculiar  in   its  character, 
and  has  other  effects  and  consequences   attending  it.      It   essentially 
changes  the  rights,  duties  and  privileges  of  the  parties.     They  cannot, 
while  it  exists,  without  a  violation  of  good  faith,  as  well  as  of  the 
material  legal  obligations  to  which  it  subjects  them,  negotiate  a  con- 
tract  for  such   alliance  with  any  other  person.     A  woman   who  has 
voluntarily  made  such  an  agreement,  cannot   without  indelicacy,  and 
so  not  without  exposing  herself  to  unfavorable  observation  and  to  some 
loss  of  public  favor  and  respect,  seek  elsewhere,  except  for  good  and 
substantial   rea.sons   for   withdrawing   from   rm   engagemcMit   by   which 
she   has   bound   herself,    for   preferment    in    marriage;   and   thus   her 
promise  and  agreement  to  marry  a  particular  person  essentially  changes 
her  condition  in  life.     They  materially  affect  not  only  her  ojiportuni- 
ties  hut  her  ri^ht  to  attempt  in  that   way  to  improve  it.     A  legal  con- 
tract and  ])roniisc  made  in  good    faith  to  nKUTv  another  must,  there- 
fore, like  an  acual  marriage,  he  deeniefj  to  he  a  valuable  consideration 


138  TRUSTS.  (Part  2 

for  the  conveyance  of  an  estate,  and  will  justly  entitle  the  grantee  to 
hold  it  against  subsequent  purchasers,  or  the  creditors  of  the  grantor. 
Applying  these  principles  to  the  facts  disclosed  in  the  present  case, 
it  follows  as  a  necessary  consequence  that  the  hill  cannot  be  maintained. 
Judgment  must  therefore  be  entered  for  the  defendant. 


MOSHIER  V.  KNOX  COIXEGE. 

(Supreme  Court  of  Illinois,  1863,  3?  111.  155.) 

BrEESe;,  J.  .  .  .  But  apart  from  all  this,  the  appellees  ought  to 
retain  this  decree,  because  it  is  shown  the  indebtedness  was  for  the 
purchase-money  of  the  premises,  and  appellant  has  not  shown  he  was  a 
bona  fide  purchaser  for  a  valuable  consideration,  paying  his  money  at 
the  time  on  the  faith  of  the  title  so  purchased.  It  was  incumbent  on 
the  appellant  to  show  not  only  that  he  had  a  conveyance  for  this  land, 
legal  in  form,  but  that  he  actually  paid  for  the  land.  It  is  not  sufficient 
that  he  may  have  secured  the  payment  of  the  purchase-money.  He 
must  have  paid  it  in  fact  before  he  had  any  notice  of  appellee'  prior 
equitable  title.  That  is  an  essential  element  in  the  equity,  which  must 
exist  in  order  to  support  appellant's  claim,  which  he  attempts  to 
uphold.  If  he  has  not  paid  the  purchase-money,  no  wrong  is  done 
him  by  taking  from  him  a  legal  title,  which  has  cost  him  nothing.  The 
answer  does  not  aver  that  any  part  of  the  purchase-money  has  ever 
been  paid,  and  he  has  failed  to  show  that  any  was  paid.  It  cannot, 
therefore,  be  said  that  the  appellant  had  any  equity  to  support  his 
legal  title,  and,  consequently,  he  ought  not  to  retain  it  against  the 
equitable  title  of  the  complainant.     ... 


GOWER  V.  DOHENY. 

(Supreme  Court  of  Iowa,  1871,  33  Iowa  36.) 

Day,  Ch.  J.  .  .  .  We  are  thus  brought  to  consider  in  what  man- 
ner the  judgment  creditor,  purchasing  at  a  sheriff's  sale,  and  those 
holding  under  him,  are  affected  by  equities  of  third  persons  or  their 


Cll.  5)  TRANSFER  OF  TRUST  PROPERTY.  139 

claims  under  unrecorded  deeds.  It  is  well  settled  that  a  third  person, 
who  purchases  at  a  sheriff's  sale,  without  notice  of  outstanding  equities, 
is  entitled  to  the  same  protection  as  any  other  purchaser  without  notice 
and  for  value.  The  rule,  however,  as  to  the  judgment  creditor  has 
oscillated  somewhat,  and  can  scarcely  yet  he  regarded  as  settled  in 
this  State.  ...  In  the  case  of  Evans  v.  McGlasson,  18  Iowa  152, 
the  court  united  in  holding  that  a  judgment  creditor,  who  becomes  a 
purchaser  at  sheriff's  sale,  is  protected  at  law  against  matters  of 
which,  at  the  time  of  the  purchase,  he  had  no  notice,  and  that  this 
rule  also  obtains  in  equity,  unless  there  are  equities  of  so  strong  and 
persuasive  a  nature  as  to  prevent  its  application ;  and  these,  if  they 
are  relied  upon,  must  be  alleged  and  proved.  As  no  such  equities  have 
been  established  in  the  present  case,  the  doctrine  of  Evans  v.  McGlas- 
son may  be  regarded  as  direct  authority  for  sustaining  the  title  of 
the  plaintiff.  But  the  rights  of  the  judgment  creditor  received  more 
direct  recognition,  in  the  case  of  Halloway  v.  Platner,  20  Iowa,  121, 
in  which  it  was  held  that  when  a  creditor  merges  his  judgment  into  a 
title  without  actual  or  constructive  notice  of  prior  equities  he  be- 
comes a  purchaser,  within  the  meaning  of  section  2220  of  the  Revision, 
and  is  entitled  to  equal  protection,  in  the  absence  of  equitable  circum- 
stances, with  any  other  subsequent  bona  fide  purchaser.     .     .     . 


PUGH  V.  HIGHLEY. 

(Supreme  Court  of  Indiana,  1898,  152  Ind.  252,  53  N.  E.  171.) 

Baker,  J.  .  .  .  The  question  is:  Does  a  judgment  creditor, 
who  in  good  faith  buys  at  a  proper  execution  sale  on  his  own  valid 
judgment,  take  the  land  subject  to  prior  secret  equities? 

The  lien  of  a  judgment  attaches  only  to  the  actual  interest  of  the 
debtor  in  the  land.  While  the  judgment  remains  unexecuted,  the 
lien  may  be  subordinated  to  any  prior  equity,  though  secret;  for  the 
creditor  pays  or  surrenders  nothing  to  or  for  the  debtor,  and  continues 
to  hold  against  the  debtor  his  full  claim,  which  the  court  has  merely 
changed  from  a  cause  of  action  into  a  judgment. 

A  security  for  an  antecedent  debt  will  be  upheld  between  ihr  i)arlies; 
but  the  taker  will  not  be  protected  against  i)ri()r  secret  equities,  be- 
cause he  parts  with  nothing. 


140  TRUSTS.  (^Part  2 

But  a  purchaser  who  pays  the  owner  the  value  of  the  land  takes  the 
title  clear  of  equities- of  which  he  has  no  notice. 

And  a  creditor  who,  without  notice,  cancels  a  preexisting  debt  in 
consideration  of  his  debtor's  conveying  him  land,  is  a  good  faith 
purchaser  for  value.  To  hold  that  the  debtor  may  sell  his  land  to  a 
stranger  and  turn  over  the  purchase  price  (money,  notes,  goods,  land) 
to  his  creditor  in  satisfaction  of  the  debt,  whereby  the  creditor  is  free 
from  claimants  of  secret  equities;  and  to  hold  that  the  creditor,  if 
the  debtor  conveys  the  land  to  him  in  payment  of  the  debt,  is  liable  to 
be  affected  by  secret  equities, — is  to  approve  the  roundabout  and  in- 
volved, and  to  condemn  the  straight  and  simple,  method  of  accomplish- 
ing the  same  result, — using  the  land  to  pay  the  debt.     .     .     . 


DUFF  V.  RANDALL 

(Supreme  Court  of  California,  1897,  116  Cal.  226,  48  Pac.  66.) 

Harrison,  J.     ...     A  purchaser  of  real  property  at  an  execu- 
tion sale  stands  in  the  same  position  as  any  other  purchaser  from  the 
judgment  debtor,  and  the  certificate  of  sale  which  he  receives  from 
the  sheriff  is  a  conveyance  within  the  meaning  of  the  recording  act, 
by  which  he  is  protected  from  the  unrecorded  claim  of  others,  of  which 
he  did  not  have  notice.     In  Foorman  v.  Wallace,  75  Cal.  552,  certain 
property  standing  of  record  in  the  name  of  a  judgment  debtor  had  been 
purchased  by  the  defendant  at  a  sale  under  execution  against  him,  but 
more  than  two  years  prior  to  the  sale  the  judgment  debtor  had  con- 
veyed the  property  to  the  plaintiif.    At  the  time  of  the  purchase  by  the 
defendant  this  conveyance  had  not  been  recorded,  but  was  recorded 
prior  to  the  execution  of  the  sheriff's  deed.     To  the  contention  of  the 
plaintiff  that  the  sale  by  the  sheriff  was  inoperative  as  against  his 
unrecorded  deed,  the  court  said:     "The  transfer  is  not  perfect  until 
the  execution  and  delivery  of  the  sheriff's  deed,  but  by  the  doctrine 
of  relation  the  deed  when  thus  executed  is  to  be  deemed  and  taken 
as  though  executed  at  the  date  when  the  lien,  of  which  it  is  the  se- 
quence, originated,"  and  held  that  the  defendant's  title  obtained  at  the 
sheriff's  sale  was  superior  to  that  of  the  plaintiff  under  his  unrecorded 
deed.     (vSee,  also  vStewart  v.    Freeman,  22  Pa.   vSt.   120;  Atwood  v. 


Ch.  5)  TEAXSFER  OF  TRUST  PROPERTY.  141 

Bearss,  45  Mich.  469;  McMurtrie  v.  Riddell.  9  Colo.  497;  Byers  v. 
Engles,  16  Ark.  543.)  By  virtue  of  tlie  principles  thus  declared,  the 
title  acquired  hy  Randall  under  his  purchase  at  the  sheriff's  sale  must 
prevail  over  that  held  by  the  plaintiffs,  of  which  he  had  no  notice  until 
after  he  had  paid  the  purchase  money,  and  received  the  certificate 
of  sale.  He  is  fully  protected  in  this  purchase,  and  his  right  to  this 
protection  is  the  same  whether  he  received  the  notice  of  the  plaintiff's 
claim  before  or  after  the  execution  of  the  sheriff's  deed.  He  was  a 
bona  fide  purchaser  for  value  before  the  notice  was  given,  and  his 
rights  cannot  be  affected  by  any  notice  given  thereafter.     .     .     . 


SCHAFER  V.  REILLY. 

(New  York  Court  of  Appeals,  1872,  50  N.  Y.  61.) 

Allen,  J.  .  .  .  One  who  takes  an  assignment  of  a  bond  and 
mortgage,  as  did  Mrs.  Burchard  in  this  instance,  takes  it  subject  not 
only  to  any  latent  equities  that  exist  in  favor  of  the  mortgagor,  but 
also  subject  to  the  like  equities  in  favor  of  third  persons  and  strang- 
ers. 

Mrs.  Burchard  has  taken  especial  care  to  foreclose  all  equities  of 
the  mortgagor,  and  should  he  attempt  a  defense  to  the  mortgage,  he 
would  be  precluded  under  one  of  the  exceptions  to  the  rule  restricting 
the  title  which  an  assignee  may  acquire  to  the  actual  title  of  the  as- 
signee, adopted  for  the  prevention  of  fraud.  (McNiel  v.  Tenth 
National  Bank,  46  N.  Y.  325.)  Eminent  judges  have  pronounced  in 
favor  of  a  rule  which  would  only  subject  the  purchaser  of  choses 
in  action  to  the  equities  of  the  debtors,  and  which  would  give  them 
rights  as  they  apparently  exist  against  third  persons,  but  these  views 
have  not  prevailed.  Bush  v.  Lathrop  (22  N.  Y.  535),  may  be  regarded 
as  putting  the  question  at  rest  in  this  State,  and  the  decision  well 
supported  by  the  opinion  of  Judge  Denio,  in  which  he  reviews  the 
cases  bearing  upon  the  question,  and  the  dicta  of  the  many  judges  who 
have  alluded  to  the  subject,  commends  itself  as  a  just  exposition  of  the 
law,  as  well  upon  principle  as  upon  authority.  He  adopts  the  rule  as 
expressed  by  Lord  Thurknv,  in  Davis  v.  Austin  (1  Ves.  247),  "a  pur- 
chaser of  a  chose  in  action  must  always  abide  by  the  case  of  the  person 
from  whom  he  buys." 


142  TRUSTS.  (Part  2 


WILLIAMS  V.  DONNELLY. 

(Supreme  Court  of  Nebraska,  1898,  54  Neb.  193,  74  N.  W.  601.) 

Harrison,  C.  J.     .     .     .     Whether  such  certificates  are  more  than 
non-negotiable  choses  in  action  is  not  necessary  here  to  consider  or  de- 
dermine;  for  the  purposes  of  the  discussion,  without  deciding  it,  it 
may  be  conceded  that  they  are  not.     The  rule  is  that  the  assignee  of 
a  non-negotiable  chose  in  action  stands  in  the  shoes  of  his  assignor 
as  to  all  equities  existing  between  the  original  parties,   or,  in  other 
words,  receives  it  subject  to  all  equities  existing  between  the  original 
parties  at  or  prior  to  the  assignment  (2  Am.  &  Eng.  Ency.  Law  (2nd 
ed.)  1080)  ;  but  this  does  not  apply  as  to  equities  between  the  assignor 
and  a  third  person  of  which  the  assignee  had  no  notice.  (2  Am.  &  Eng. 
Ency.  Law   (2nd  ed.)    1080,  and  note.)      It  was  said  by  Chancellor 
Kent  in  Murray  v.  Lylburn,  2  Johns.  Ch.  (N.  Y.)  441 :    "It  is  a  general 
and  well-settled  principle,  that  the  assignee  of  a  chose  in  action  takes 
it  subject  to  the  same  equities  it  was  subject  to  in  the  hands  of  the 
assignor.     But  this  rule  is  generally  understood  to  mean  the  equity 
residing  in  the  original  obligor  or  debtor,  and  not  an  equity  residing 
in  some  third  person  against  the  assignor."    There  are  decisions  which 
support  a  contrary  doctrine,  but  the  weight  of  authority  is  favorable 
to  the  foregoing  rule,  and  the  reasons  given  for  it  are  satisfactory; 
hence  we  will  adopt  it,  and  applying  it  to  the  existent  conditions  de- 
veloped in  the  case  at  bar  the  portion  of  the  decree  of  the  district 
court  by  which  the  lien  of  the  bank  was  accorded  priority  was  correct 
and  is  affirmed. 


STURGE  V.  STARR. 

(High  Court  of  Chancery,  1833,  2  M.  &  K.  195.) 

William  Starr  bequeathed  one  sixth  of  the  produce  of  his  real 
estate  to  trustees,  upon  trust  to  invest  the  same  and  pay  the  dividends 
into  the  hands  of  his  daughter  Georgiana  Whatford,  or  of  such  person 


Ch.  5)  TRANSFER  OF  TRUST  PROPERTY.  143 

as  she  should  appoint,  to  her  separate  use,  and  after  her  de- 
cease upon  trust  for  the  benefit  of  her  children.  The  testator  died 
in  1807.  The  ceremony  of  marriage  was  afterwards  performed  be- 
tween Georgiana  Whatford  and  a  person  named  Wright,  who  was  in 
fact  married  at  the  time  to  another  woman.  Georgiana  Whatford 
lived  with  Wright  in  ignorance  of  the  fact  of  his  prior  marriage  and 
received  the  dividends  of  the  trust  fund  until  the  year  1816,  when  she 
and  her  supposed  husband  contracted  to  sell  her  interest  in  the  legacy 
to  John  Sturge  for  the  sum  of  £333  14s.,  which  sum  was  paid  to  her 
and  Wright,  and  a  deed  of  assignment  to  vSturge,  dated  the  22nd  of 
June  1816,  was  executed  by  them  jointly.  The  bill  was  filed  by  Sturge 
against  the  representative  of  the  surviving  trustee  of  the  trust  fund, 
and  Georgiana  \\'hatford,  for  the  purpose  of  obtaining  the  benefit  of 
the  assignment. 

On  the  part  of  the  defendants,  it  was  contended  by  Mr.  Treslove 
that  the  transaction  was  tainted  by  the  fraud  of  one  of  the  parties  to  it, 
assuming  a  false  character,  and  imposing  as  well  upon  Georgiana 
Whatford  as  upon  the  Plaintiff,  was  not  such  an  instrument  as  a 
court  of  equity  would  carry  into  execution.  It  was  like  the  case  of 
a  legacy  given  to  a  person  in  a  character  which  did  not  belong  to  him, 
'  and  which  he  had  fraudulently  induced  the  testator  to  believe  that 
he  sustained.  ...  It  was  also  insisted  that  Wright  ought  to 
have  been  made  a  party  to  the  suit. 

The  Master  of  the  Roet.s.  The  false  character  under  which 
Wright  acted  cannot  afifect  the  validity  of  this  transaction.  The  prop- 
erty was  Georgiana  Whatford's ;  and  the  instrument  by  which  it 
was  assigned  was  her  instrument,  not  her  supposed  husband's.  She 
might  not  have  executed  such  an  instrument  had  she  been  aware  of 
the  fraud  that  had  been  practiced  upon  her  by  Wright;  but  that  fraud 
could  not  affect  the  right  of  a  bona  fide  purchaser.  Wright's  partici- 
pation in  the  execution  of  the  instrument  must  be  considered  as  nuga- 
tory. It  is  not  necessary,  therefore,  that  he  should  be  a  party  to  the 
suit. 


RULING  V.  ABBOTT. 

(Supreme  Court  of  California,  1890,  86  Cal.  423,  25  Pac.  4.) 

Thornton,  J. — Action  to  foreclose  a  mortgage  on  a  parcel  of  land 
situate  in  Humboldt  County.     Defendant  Abbott  was  the  mortgagor. 


144  TRUSTS.  (Part  '2 

Abbott  made  default,  judgment  of  foreclosure  was  made  and 'entered 
against   defendants,   and    from   this   judgment    defendant    Bull   alone 
prosecutes  an  appeal.     The  following  facts  are  found:       On  July  7, 
1885,  Abbott  was  the  owner  of  the  tract  of  land  which  he,  on  the 
28th  of  July,   1886,  .conveyed  to  plaintilT  by  mortgage  to  secure  the 
payment  of  a  debt  due  by  Abbott  to  the  plaintiff.     Abbott's  title  to 
this  land  was  derived  under  a  certificate  of  purchase  from  the  state 
of   California  bearing  date  the  day  first  above  mentioned.     On  the 
28th  of  luly,  1886,  Abbott  assigned  his  certificate  of  purchase,  and  all 
his  title  in  the  land  mentioned  therein,  to  one  M.  H.  Crissman,  who 
purchased  wdth  actual  notice  of  the  existence  of  plaintifif's  mortgage. 
On  April  15,  1887,  Crissmon  assigned  the  certificate  of  purchase  and 
all  his  title  in  and  to  said  lands  to  C.  C.  Fitzgerald.     Fitzgerald  pur- 
chased wnth   actual   notice   of   the   existence   of    plaintiff's   mortgage, 
and  agreed,  as  part  consideration  for  the  assignment,  to  pay  at  maturity 
the  debt  secured  by  the  mortgage,  and  for  this  purpose  retained  in 
his  hands  from  the  purchase  price  the  full  amount  of  the  principal 
and  interest  due  on  the  debt.     On  July  1,  1887,  Fitzgerald  assigned 
the  certificate  of  purchase,  and  all  his  title  to  said  lands,  to  one  R.  W. 
Rideout,  who  at  the  time  of  his  purchase  had  no  knowledge  of  the_ 
existence   of    plaintifif's    mortgage.      Thereafter,    Rideout,    while   the 
owner  of  the  land,  received  from  the  state  of  California,  as  assignee 
of  the  certificate  of  purchase,  a  patent  for  said  lands.     The  plaintiflf 
placed  the  mortgage  on  record  in  the  proper  office  in  the  county  of 
Humboldt  on  the  nineteenth  day  of   September,   1887.     On  the  20th 
of  October,  1887,  and  while  the  mortgage  of  plaintifif  was  of  record, 
Rideout  conveyed  the  lands  described  in  the  certificate  of  purchase 
above  mentioned  to  the  above-named  C.  C.  Fitzgerald.     On  the  second 
day   of   January,    1888,   Fitzgerald   conveyed   to   the   defendant    Bull 
(appellant  here)   the  lands  above  referred  to.     At  the  date  of  the 
conveyance  last  named.  Bull  had  full  notice  of  the  record  of  plaintifif's 
mortgage,  and  of  the  execution  and  existence  of  such  mortgage. 

On  the  facts  above  stated,  the  court  rendered  judgment  in  favor 
of  plaintiff.  We  think  the  judgment  should  stand.  When  Fitzgerald, 
who  was  the  grantor  of  Rideout,  and  who  had  actual  notice  of  plain- 
tifif's. mortgage  when  he  purchased  and  at  the  time  he  conveyed  to 
Rideout,  received  a  conveyance  from  the  latter,  he  occupied  the  same 
position  he   formerly  did;   viz.,   that   of   a  purchaser  with  notice   of 


Cll.    5)  TKAlSrSFER   OF    TRUST     PROPERTY.  145 

plaintiff's  rights  and  equities.  He  was  not  protected  bv  the  fact  tliat 
Rideout.  his  grantor,  was  an  innocent  purchaser.  (Talbert  v.  Single- 
ton, 42  Cal.  391  ;  2  Devlin  on  Deeds,  sec.  748;  2  Pomeroy's  Eq.  Jur., 
sec.  754.)  When  Fitzgerald  secured  the  conveyance  from  Rideout, 
he  occupied  the  same  position  he  did  when  he  purchased  from  Criss- 
mon, — that  of  a  purchaser  with  notice  of  and  bound  by  all  the  equities 
of  Huling.  The  court  finds  that  Bull  took  his  conveyance  from  Fitz- 
gerald with  full  notice  of  plaintiff's  equities.  We  cannot  see  in  what 
way  the  conclusion  can  be  avoided  that  plaintiff  had  a  right  to  enforce 
his  rights  against  Bull.  It  may  be  further  observed  that  it  does  not 
appear  that  Bull  paid  any  money  on  his  purchase.  He  must,  then, 
be  held  to  occupy  the  same  position  that  Fitzgerald  did,  and  alike 
subject  to  the  enforcement  of  plaintiff's  rights. 
Judgment  affirmed. 


MURDOCK  &  DICKSON  v.  FINNEY. 

(Supreme  Court  of  Missouri,  1855,  21  Mo.  138.) 

Scott,  J.  1.  This  case  appears  to  turn  on  the  law  respecting 
the  assignment  of  choses  in  action.  The  law  on  this  subject  seems  to 
be  well  settled.  As  between  the  assignor  and  the  assignee,  the  equi- 
table right  will  pass  without  any  notice  to  the  debtor ;  for  the  assignor 
is  bound  from  the  moment  of  the  contract.  Flut  if  the  assignee  means 
to  go  further  and  make  his  right  attach  upon  the  thing  assigned,  it 
is  necessary  to  give  notice  to  the  debtor  or  trustee  of  the  assignment. 
But  if,  after  a  chose  in  action  is  transferred  by  its  owner,  it  is  assigned 
a  second  time,  and  the  last  assignee  first  give  notice  to  the  debtor  of  his 
right,  his  equity  will  be  superior  to  that  of  rhe  first  assignee  who  has 
neglected  to  give  notice;  for,  by  such  failure,  the  first  assignee  has 
enabled  the  owner  of  the  chose  in  action  to  commit  a  fraud  by  making 
another  sale.  The  second  purchaser,  by  enquiring  of  the  debtor, 
might  have  learned  whether  the  debt  had  been  transferred,  or  if  notice 
of  the  transfer  had  been  given  to  the  debtor,  he,  after  such  notice, 
would  pay  the  debt  to  another  at  his  peril.  The  precaution  of  making 
enquiry  is  always  taken  by  a  diligent  purchaser,  and  if  it  is  not  taken, 
there  is  neglect,  and  no  relief  is  extended  to  him  who  has  been  guilty 
2  Eq.— 10 


146  ■       TRUSTS.  (Part  2 

of  it.  If  both  assignees  give  notice  at  the  same  time,  or  if  there  is 
no  notice  by  either  assignee,  then  the  rule  qui  prior  est  in  tempore 
potior  est  in  jure  prevails,  and  the  first  assignment  will  be  sustained. 
So  that  it  is  seen  that  notice  to  the  debtor  or  trustee  is  necessary,  in 
order  to  make  a  perfect  and  indefeasible  assignment  of  a  chose  in  ac- 
tion. (Dearie  v.  Hall,  3  Eng.  Con.  Chan.  266;  Heath  v.  Powers,  9 
Mo.  Rep.  765.)     ... 


LEE  V.  HOWLETT. 

(High  Court  of  Chancery,  1856,  2  K.  &  J.  531.) 

Timothy  Tripp  Lee,  by  his  will,  dated  the  30th  of  June,  1840, 
amongst  other  devises,  gave  to  his  wife  Elizabeth  (since  deceased) 
certain  freehold  and  leasehold  hereditaments,  known  as  Dell's  Manor 
farm,  to  hold  the  same  for  her  life ;  and,  after  her  decease  the  testa- 
tor directed  that  the  same  should  be  sold  by  public  auction,  and  that 
the  money  should  be  equally  divided  among  his  surviving  children ;  and 
the  testator  devised  and  bequeathed  the  residue  of  his  property,  as  well 
funded  or  otherwise,  to  his  wife  for  her  life,  and  after  her  death,  to 
be  equally  divided  amongst  his  surviving  children.  And  he  appointed 
his  wife,  and  his  sons,  the  Plaintifif  Timothy  Lee  and  Cornelius  Lee 
(since  deceased),  executrix  and  executors  of  his  will. 

The  testator  died  on  the  29th  of  December,  1840,  leaving  his  widow 
and  eleven  children  surviving  him. 

By  a  deed  of  arrangement,  dated  in  1841,  and  executed  by  all  the 
children,  (except  one  who  had  died),  it  was  mutually  agreed  that  all 
the  property  devised  by  the  testator  amongst  his  surviving  children, 
should  be  divided  and  disposed  of,  subject  to  the  Hfe  interest  therein, 
in  life  manner  and  shares  as  if  the  same  had  been  given,  subject  as 
aforesaid,  amongst  all  his  children  who  should  survive  him,  equally, 
as  tenants  in  common,  so  that  one  equal  eleventh  part  or  share  thereof 
should  go  and  be  paid  and  payable  to  each  and  every,  or  to  the  execu- 
tors, administrators,  or  assigns  of  each  and  every,  the  said  &c.  (the 
children),  notwithstanding  any  or  either  of  them  the  said  &c.  should 
die  before  the  property  should  become  divisible  or  payable,  and  the 
executors  or  administrators  of  any  of  them  who  might  so  die  should 


Ch.  5)  TRANSFER  OF  TRUST  PROPERTY.  147 

receive  his  or  her  eleventh  share,  and  apply  the  same  as  his  or  her 
personal  estate  &c. 

Charles  Lee,  one  of  the  children,  by  indenture,  dated  the  24th  of 
March,  1842,  mortgaged  his  reversionary  share  and  interest  of  all 
the  property  under  the  will  and  deed  of  arrangement  to  one  Simon 
Main,  to  secure  £450  and  interest,  of  which  indenture  the  Plaintiff 
Timothy  Lee  had  not  received  notice  till  the  year  1848. 

By  indenture,  dated  February  14th,  1844,  Charles  Lee  again  as- 
signed his  share  to  a  Miss  Lys  to  secure  £250  and  interest ;  of  which 
indenture  Miss  Lys  gave  notice  to  the  PlaintiiT  in  May,  1844. 

At  the  time  of  the  mortgage  to  her,  Miss  Lys  had  no  notice  of  the 
prior  mortgage. 

By  indenture  dated  the  1st  of  October,  1846,  Charles  Lee  again 
assigned  his  share  to  one  Gashes  to  secure  a  sum  of  £300  and  interest ; 
of  which  indenture  Gashes  gave  notice  to  the  Plaintiff  in  the  same 
month  of  October,  1846. 

The  testator's  widow  having  died  in  1854,  this  suit  was  instituted 
by  the  Plaintiff  for  the  administration  of  the  real  estate;  a  previous 
suit  of  "Lys  V.  Lee"  had  been  instituted  by  Miss  Lys  to  realise  her  se- 
curity out  of  the  personal  estate,  which  however  was  wholly  exhausted, 
leaving  nothing  but  the  real  estate  and  its  produce  for  the  incumbranc- 
ers to  look  to. 

A  decree  for  sale  had  been  made  in  this  suit  (Lee  v.  Howlett), 
and  the  usual  inquiry  directed  as  to  incumbrances  on  the  shares  of 
the  children. 

Pursuant  to  the  decree  Dell's  Manor  farm  had  been  sold  for  £3400, 
and  the  residuary  estate  for  £500.  The  Chief  Clerk  certified  as  to 
the  incumbrances,  and,  amongst  others,  to  those  on  Charles  Lee's  share 
as  above;  the  result  of  his  finding  being,  that  the  several  mortgages, 
Vaughan  (in  whom  Simon  Main's  mortgage  had  become  vested), 
Miss  Lys,  and  Caches,  were  entitled  according  to  the  date  of  their 
incumbrances.  But  it  was  arranged  that  the  question  of  priority, 
with  reference  to  the  dates  of  the  several  notices  given  to  the  plaintiff, 
should  be  argued  before  the  Court  on  the  hearing  for  fnrllicr  con- 
sideration.    .     .     . 

VicE-CiiANCELLOR  Sir  W.  Page  Wood.  I  am  of  opinion,  that  as 
to  that  portion  of  the  property  which  was  ordered  to  be  sold,  I  am 
bound  to  hold,  on  the  principle  of  Foster  v.  Cockerell,  9  Bligh.,  N.  S. 


148  TEUSTS.  (Part  2 

332;  3  CI.  &  F.  456;  Deale  v.  Hall,  3  Russ.  1  and  that  class  of  cases, 
that  the  incuinl)rancer  who  first  gave  notice  of  his  incumbrance  must 
prevail  over  the  others.  The  principle  does  not  depend  simply  on  a 
question  of  mala  fides;  but  the  rule  is,  that  the  party  who  first  makes 
himself  master  of  a  chose  in  action,  by  giving  notice,  to  prevent  its 
being  handed  over  by  the  person  in  whose  hands  it  is  to  any  other 
claimant, — in  other  words,  who  first  devests  the  title  of  the  owner 
by  giving  notice  to  the  person  through  whom  the  owner  must  derive 
the  fund— arrests  that  fund,  and  acquires  the  property  for  himself. 
Whether  the  fund  be  a  trust  fund  held  by  A  in  trust  for  B,  or  a 
debt  payable  by  A  to  B,  if  B  assigns,  and  his  assign  requires  A  to 
pay  the  money  over  to  him,  that  gives  him  priority  over  a  previous 
assign  of  B,  who  has  not  given  such  notice. 

It  is  decided,  that  this  doctrine  does  not  apply  to  real  estate ;  and  in 

Wiltshire  v.  Rabbits,  14  Sim.  76,  the  late  Vice-Chancellor  of  England 

considered  that  the  doctrine  was  not  applicable  to  an  assignment  of  an 

equitable  interest  in  a  chattel  real.     In  this  case,  part  of  the  property 

is  directed  to  be  sold,  without  saying  by  whom.     The  sale  must  be 

by  the  heir  or  executors.     Here,  the   same  person   fills  both  those 

characters,   and  the  property  must  therefore  pass  through  him.      It 

must  be  converted  into  money,  and  none  of  the  legatees  could  have     * 

reached  that  money  except  through  him;  and  they  could  never  have 

had  the  property  in  the  shape  of  land,  but  only  as  money.     Then, 

the  executor  being  bound  to  pay  the  shares  in  this  manner,  the  fact, 

that,  at  the  time  when  this  security  was  given,  the  period  for  the  sale 

had  not  arrived,  is  not  material.     Whenever  the  property  was  sold, 

and  the  money  paid  to  the  executor,  he  would  hold  part  of   it   for 

Charles  Lee,  or  for  the  person  who  had  obtained  an  assignment  of  his 

share  from  Charles  Lee.     Here,  Miss  Lys  first  gave  to  the  executor 

notice  of  the  assignment  in  her  favor,  and  therefore  she  has  priority 

over  all  other  assigns  of  Charles  Lee's  share  as  to  this  part  of  the 

mortgaged  property. 

As  regards  the  residuary  real  estate,  there  is  no  direction  in  the 
will  to  sell  that.  It  was  devised  to  the  testator's  wife  for  life,  and 
after  her  death  to  her  children.  That  would  carry  the  fee  simple, 
and  the  children  would  not  be  obliged  to  take  their  shares  from  the 
hands  of  any  third  person;  and  although,  by  the  deed  of  arrange- 
ment, they  seem  to  have  treated  it  as  personal  estate,  it  was  in  their 


Ch.  5)  TEANSFER  OF  TRUST  PROPERTY.  149 

own  hands ;  and  therefore  there  can  be  no  question  of  notice  as  to  this 
property,  but  it  must  go  to  the  incumbrancers  according  to  the  order  in 
time  which  thev  obtained  their  securities. 


SKILES  V.  SWITZER. 

(Supreme  Court  of  Illinois,  1850,  11  111.  533.) 

This  was  a  bill  in  chancery,  filed  by  Switzer  and  others  against  the 
appellants,  to  set  aside  certain  conveyances  and  mortgages,  made  as 
is  alleged,  in  fraud  of  creditors.     .     .     . 

CaTON^  J.  It  is  a  fatal  objection  to  this  decree,  that  the  infant 
heir  of  Udell  was  not  a  party.  The  legal  title  to  the  property  in  con- 
troversy descended  to  her,  and  although  her  father  held  it  in  trust, 
yet  no  decree,  divesting  her  of  that  legal  title,  could  be  binding  upon 
her,  unless  she  was  properly  represented  by  a  guardian  appointed  to 
protect  her  interest.  The  primary  object  of  the  decree  was  to  divest 
her  of  the  legal  title,  and  as  that  was  not  legally  done,  the  balance  of 
the  decree,  which  provides  for  the  disposition  of  the  proceeds  of  the 
property,  must  necessarily  be  reversed  also,  for  there  is  nothing  upon 
which  it  can  operate.     ... 


CORNWELL  v.  ORTON. 

(Supreme  Court  of  Missouri,  1894,  126  Mo.  355,  28,  S.  W.  893.) 

Gantt,  p.  J.  .  .  .  Again,  the  doctrine  of  courts  of  equity  is 
that  equitable  estates  are  considered  to  all  intents  and  purposes  as 
legal  estates.  In  the  construction  of  the  limitations  of  a  trust,  courts 
of  equity  follow  the  rules  of  law  applicabK'  U)  legal  estates,  'i'lie 
cestui  que  trust,  or  beneficiary,  takes  the  same  estate  in  duration  as 
in  a  legal  estate,  and  the  estate  granted  is  subject  to  the  same  incidents, 
properties  and  consequences  as  belong  to  similar  estates  at  law.  They 
are  alienable,  devisable  and  descendible  in  the  same  maimer.  They 
are  alike  subject  to  dower  and  curtesy.  It  is  true  at  (Mie  lime  a  widow 
was  not  dowable  of  a  trust  estate  but   both   in    ivngland  and   in  this 


150  TRUSTS.  (Part  2 

country  a  widow  is  now  dowable  in  an  equitable  estate.  As  to  curtesy, 
actual  possession  of  the  estate  or  the  receipt  of  the  rents,  issues,  and 
profits  by  the  wife  or  possession  by  her  trustee  for  her  benefit  is 
equivalent  to  legal  seizin.    These  principles  are  elementary. 


JOHNSTON  V.  SPICER. 

(New  York  Court  of  Appeals,  1887,  107  N.  Y.  185,  13  N.  E.  753.) 

RuGER,  C.  J.  .  .  .  The  respondents  assert  that  no  claim  is 
made  that  rights  of  action  escheat  to  the  People,  and  such  seems  to 
have  been  the  theory  entertained  by  the  General  Term.  In  the  strict 
sense  of  the  term  escheat,  perhaps,  this  may  be  so,  but  we  assume  it 
to  be  the  law  in  this  State  that  all  rights  of  property,  of  whatever 
nature  they  may  be,  revert  to  the  People  when  the  owner  dies  intestate, 
and  there  is  a  failure  of  heirs  or  next  of  kin,  to  take  such  property. 
We  believe  it  to  be  the  established  rule  in  all  civilized  countries  that, 
in  such  case,  the  property  of  a  resident  dying  intestate  without  heirs, 
reverts  to  the  Sovereign  or  State,  to  be  administered  for  the  general 
benefit  of  the  community  in  which  he  dies.  While  there  is  an  absence 
of  specific  statutory  authority  declaring  the  rights  of  the  State  in 
such  property,  it  is  believed  to  be  the  uniform  practice  for  it  to  assume 
by  force  of  natural  law,  the  control  of  such  property,  and  to  administer 
it  for  the  benefit  of  those  concerned,  and,  in  the  absence  of  any  legal 
heir,  to  appropriate  the  proceeds  to  the  uses  of  the  State. 

It  is  said,  in  4  Kent's  Commentaries,  425,  "It  is  a  principle  which 
lies  at  the  foundation  of  the  right  of  property  that,  if  the  owner- 
ship becomes  vacant,  the  right  must  necessarily  subside  into  the  whole 
community  in  whom  it  was  originally  vested  Avhen  society  first  assumed 
the  elements  of  order  and  subordination."  In  a  note,  it  is  stated,  "the 
escheats  spoken  of  in  the  text  relate  exclusively  to  land,  movables  never 
escheated  in  the  technical  sense ;  and  if  the  owner  died  intestate  and 
left  no  lawful  representatives,  the  personal  estate  remained  at  the 
disposition  of  the  crown.  In  this  country  it  must  vest  in  the  State, 
and  so  the  statute  law  in  some  of  the  States  has  specially  provided." 
In  Perry  on  Trusts  (§  327),  it  is  said  that  it  was  held  in  Burgess  v. 
Wheate  (1  Ed.  177),  "that  if  the  cestui  que  trust  left  no  heirs,  the 


Cll.  5)  TRANSFER  OF  TRUST  PROPERTY.  151 

trust  estate  did  not  escheat,  but  that  the  trustee  thenceforth  held  the 
estate  discharged  of  the  trust."  "This  is  upon  the  principle  that  there 
is  no  want  of  a  tenant  to  the  land,  the  trustee  being  clothed  with  all 
the  rights  of  ownership,  against  all  the  world  except  the  cestui  que 
trust  and  those  claiming  under  him.  But  this  principle  does  not  ap- 
ply to  chattels  where  there  can  be  no  tenant,  nor  to  leaseholds,  nor 
to  an  equity  of  redemption.  In  the  United  States,  trustees  would  hold 
personal  property  subject  to  the  right  of  the  State  as  tiltima  hicres 
in  case  the  cestui  que  trust  died  without  heirs  or  next  kin,  and  it  is 
conceived  they  wjould  hold  real  estate  under  the  same  rule."  Washburn 
on  Real  Property  (vol.  3,  p.  49)  says:  "While  escheat  was  regarded 
as  an  incident  of  feudal  tenure,  it  did  not  extend  to  the  equitable  estates 
of  cestui  que  trust,  and,  by  analog}%  it  is  generally  understood  that  if 
a  cestui  que  trust  dies  intestate,  without  heirs,  the  trust  fails,  and  the 
trustee  holds  an  absolute  estate  in  the  property  free  from  the  claim 
of  any  one.  But  it  is  settled  by  the  courts  of  Maryland,  and  intimated 
by  Judge  Kent  in  respect  to  New  York,  that  such  would  not  be  the 
case  under  the  statutes  and  that  if  a  cestui  que  trust  should  die  without 
heirs,  his  equitable  estate  would  escheat  to  the  State."     .     .     , 

From  this  review  of  the  law  it  would  seem  that  there  is  no  substan- 
tial difference  between  real  and  personal  property  in  respect  to  the 
rights  acquired  by  the  State,  upon  the  death  of  its  owner,  intestate, 
without  heirs  or  next  of  kin.  A  clear  deduction  from  the  authorities 
seems  to  lead  to  the  conclusion  that  the  doctrine  of  escheat  applies  only 
to  legal  estates  and  does  not  in  a  strict  sense  affect  either  equitable 
estates  or  personal  property.  It  seems  also  to  follow  from  the  authori- 
ties cited,  that  upon  the  death  of  Ellen  Spicer  the  State  took  not  the 
land,  but  succeeded  to  the  equitable  right  which  she  had  to  a  convey- 
ance thereof.  This  right  may  possibly  be  subject  to  the  claims  of  the 
creditors,  or  other  equities  which  would  have  to  be  adjusted  in  an 
action,  by  the  equitable  owners  to  recover  the  possession  of  the  land. 

The  omission  in  the  provisions  of  the  Revised  Statutes  of  the  words 
"died  seized  of"  as  contained  in  the  Revised  Laws  of  1813,  relating 
to  escheats  is  not  supposed  to  have  effected  any  change  in  the  law  as 
the  revi.sors  say  in  their  note  to  this  section  that  it  is  "new  in  terms 
but  implied  in  Revised  Laws  (380,  §  2)."  A  new  rule,  however,  was 
intended  to  be  introduced  by  section  2  of  the  Revised  vStatutcs,  which 
provides  that  all  escheated  lands  shall  be  held  by  the   State  or   its 


]52  TRUSTS.  (Part  2 

grantees  subject  to  the  same  trusts,  etc.,  to  which  they  would  have 
been  subject  had  they  descended.  This  enactment  was  intended  to 
obviate  the  severe  rule  of  the  common  law  by  which  such  lands  when 
escheated  were  held  to  belong  to  the  king  free  from  the  trust.  (Re- 
visors'  Notes,  5  N.  Y.,  Statutes  at  Large  (Edm.  Ed.),  297.) 

With  reference  to  the  personal  estate  of  persons  dying  intestate 
without  next  of  kin,  it  appears  to  have  been  the  uniform  practice  of  the 
State  since  its  organization  to  take  such  property,  and  hold  it  either 
for  the  benefit  of  the  community  at  large  or  some  division  of  the 
State,  or  to  be  returned  to  such  persons  as  may  from  considerations 
of  natural  justice  and  equity  seem  to  the  legislature  to  be  entitled 
thereto. 

We  think  therefore,  that  the  property  left  by  Mrs.  Spicer  reverted 
to  the  State  upon  her  death,  and  that  it  was  competent  for  the  legisla- 
ture to  grant  the  rights  thereby  acquired,  and  the  right  to  administer 
thereon  to  such  person  or  persons  as  in  their  discretion  they  judged 
equitably  entitld  thereto.     (Englishbe  v.  Helmuth,  3  N.  Y.  294.)   .  .  . 


BARKER  V.  SMILEY. 

(Supreme  Court  of  Illinois,  1905,  218  111.  68,  75    N.  E.  787.) 

On  January  25,  1904,  Aura  W.  Barker  filed  her  petition  in  the  cir- 
cuit court  of  Cook  county  against  Mitchell  J.  Smiley  praying  for 
an  assignment  of  her  dower  in  certain  premises  commonly  known  as 
No.  2815  Prairie  Avenue,  in  the  city  of  Chicago.  The  principal  facts 
as  alleged  in  the  petition  are  as  follows:  On  December  26,  1867, 
the  petitioner  was  married  to  one  Samuel  B.  Barker,  who  died  on  or 
about  December  30,  1903.  On  April  30,  1886.  Samuel  B.  Barker,  for 
the  consideration  of  $50,000  acquired  the  fee  simple  title  to  the 
premises  in  question,  and  from  the  date  of  the  purchase  until  March 
21,  1900,  he  and  his  wife  occupied  it  as  a  homestead.  Notwithstanding 
the  title  was  taken  in  the  name  of  Samuel  B  Barker  it  is  claimed 
that  the  purchase  was  for,  the  petitioner,  and  he  held  the  title  in  trust 
for  her  until  February  2.  1891,  when,  in  consideration  of  love  and  af- 
fection and  one  dollar,  he  conveyed  the  same  to  her  by  warranty 
deed,  which  deed  was  delivered  to  her  and  afterwards  placed  in  the 


Cll.  5)  TRANSFER  OF  TRUST  PROPERTY.  153 

hands  of  her  hushand  to  he  placed  on  record,  which  he  failed  to  do, 
and  the  deed  was  not  recorded  until  in  May,  1893.  Petitioner  does 
not  claim  that  the  creditors  of  Samuel  B.  Barker  had  any  knowledge 
or  notice  of  this  conveyance,  but  that  on  the  date  it  was  made  he  was 
solvent.  Samuel  B.  Barker  was  engaged  in  the  lumber  business  in  the 
city  of  Chicago,  and  on  May  29,  1893,  was  insolvent.  On  that  date 
he  again  conveyed  the  premises  in  question  to  the  petitioner  by  a 
warranty  deed,  which  was  duly  filed  for  record.  On  May  31,  1893, 
the  Union  National  Bank  of  Chicago  obtained  a  judgment,  by  con- 
fession, against  Samuel  B.  Barker  for  $50,732.75,  and  execution  was 
issued  upon  the  judgment  and  levied  upon  the  premises  in  question. 
On  Twne  28.  1893,  P.  A.  Lane  obtained  a  judgment,  by  confession, 
in  the  superior  court  of  Cook  county  against  Samuel  B.  Barker  for 
$3,516.50.  Execution  was  issued  upon  the  judgment  and  returned, 
no  property  found.  On  July  1,  1893,  Lane  filed  a  creditor's  bill  in 
the  superior  court  of  Cook  county  against  Samuel  B.  Barker,  the 
Union  National  Bank  and  the  petitioner,  in  which  he  sought  to  set 
aside  the  deed  of  May  29,  1893.  On  July  6,  1893,  P.  A.  Lane  recovered 
another  judgment  in  the  superior  court  of  Cook  county  against  Samuel 
B.  Barker  for  $2701.19.  An  execution  was  issued  upon  the  judgment 
and  returned  no  property  found.  On  July  11,  1893,  Lane  filed  another 
creditor's  bill  against  the  same  parties  for  the  purpose  of  setting 
aside  the  deed,  and  on  October  18,  1893,  the  two  cases  were  consolidat- 
ed. On  December  13,  1893,  the  Union  National  Bank  filed  a  creditor's 
bill  in  the  superior  court  of  Cook  county  against  Samuel  B.  Barker,  P. 
A.  Lane,  the  petitioner,  and  other  judgment  creditors  of  Barker,  for 
the  purpose  of  setting  aside  said  deed  of  conveyance.  Upon  answers 
being  filed  in  the  various  Cases  a  decree  was  entered,  which  found  that 
Aura  W.  Barker,  was  not,  as  against  the  complainants  and  cross-com- 
plainants, the  owner  of  the  premises,  except  that  she  was  entitled  to 
the  sum  of  $1000  out  of  the  proceeds  of  said  property  when  sold, 
for  her  homestead  rights.  The  premises  were  ordered  sold  free  and 
clear  of  any  right,  claim  or  interest  of  Aura  W.  Barker.  ( )n  March 
21,  1899,  the  premises  were  sold  by  the  master  of  chancery  to  the 
Union  National  Bank  for  $35,000.  'Hie  master  pai<l  the  $1000,  as 
directed  in  the  decree,  to  Aura  \V.  l'>arker.  On  March  21,  1900.  the 
bank  conveyed  the  premises  to  the  appellee,  Mitchell  j.  Smiley,  who 
thereupon  entered   into  possession,  and   has  continued   in   possession 


]54  TRUSTS.  (Part  2 

ever  since.  The  f tirlher  allegation  of  the  petition  is,  that  the  defendant, 
Mitchell  I.  Smiley,  combined  and  confederated  with  other  persons 
for  the  purpose  of  injuring  and  defrauding  the  petitioner,  and  he 
claims  that  by  virtue  of  the  proceedings  between  the  Union  National 
Bank  and  P.  A.  Lane,  and  the  decree  therein  entered,  petitioner's  in- 
choate right  of  dower  was  directed  to  be  sold,  and  was  sold,  and 
that  the  purchaser  took  the  premises  clear  and  divested  of  her  dower. 
The  petition  alleges  that  the  premises  were  sold  subject  to  her  dower, 
that  she  has  a  right  of  dower  therein,  and  prays  that  the  same  be  set 
off  to  her.     .     .     , 

WiivKiN,  J.  ...  At  the  time  the  property  was  purchased  by 
Samuel  B.  Barker,  it  is  claimed  that  the  purchase  was  made  for  the 
petitioner  but  the  title  was  taken  in  the  name  of  the  husband  in  trust 
for  her.  If  these  facts  are  true,  the  wife  would  certainly  have  no 
dower  interest  in  the  property.  Dower,  at  common  law,  was  an  estate 
for  life,  to  which  the  wife  was  entitled,  on  the  death  of  the  husband, 
in  the  third  part  of  the  legal  estates  of  inheritance,  in  lands  and  tene- 
ments of  which  the  husband  was  seized,  in  deed,  or  in  law,  in  fee 
simple,  or  in  fee  tail,  at  any  time  during  coverture,  and  to  which  any 
issue  which  the  wife  might  have  had  might  by  any  possibility  have 
been  heir.  (Sisk  v.  Smith,  1  Gilm.  63;  10  Am.  &  Eng.  Ency.  of  Law, 

2nd  ed. — 125.)     While  this  rule  of  the  common  law  has  to  some 

extent   been   modified   by    statute,   yet    these   modifications    have   not 

materially  varied  the  above  rule  as  it  is  applicable  in  this  case.     The 

conveyance  to  the  husband  was  merely  in  trust  for  the  wife.     She  had 

the  equitable  title  and  he  held  the  naked  legal  title,  which  she  could 

have  compelled  him  to  convey  to  her.     No  right  of  dower  attaches 

to  an  estate  in  which  the  naked  legal  title  is  held  in  trust  for  a  second 

party.  (King  v.  Bushnell,  121  111.  656.)   For  this  reason,  if  the  title  was 

in  the  husband  in  trust  for  the  wife  she  could  claim  no  dower  therein. 

There  is  another  good  reason  why  the  decree  dismissing  the  petition 

is  correct.  At  the  time  of  the  hearing  upon  the  creditors'  bills  the  peti- 

oioner  filed  her  answer,  in  which  she  set  up  the  fact  of  the  original 

purchase  having  been  made  for  her ;    that  the  title  was  held  in  trust 

for  her  by  her  husband.     That  he  executed  the  deed  of  February  2, 

1891,  and  she  asked  that  her  rights  be  adjudicated.     At  the  time  of 

the  hearing  she  was   represented  by  eminent   counsel,   who   forcibly 

presented  her  claim  to  the  court,  but  notwithstanding  this  the  decree, 


Ch.  5)  TRANSFER  OF  TRUST  PKOFERTY.  155 

upon  the  merits,  was  against  her.  It  found  that  the  conveyance  of 
May  29,  1893,  was  in  fraud  of  creditors,  that  the  premises  belonged 
to  the  husband,  ordered  a  sale,  and  provided  for  the  payment  of  $1000 
to  her  for  her  homestead.  In  pursuance  of  that  decree  the  premises 
were  sold  and  the  deed  of  conveyance  made  by  the  purchaser  to  ap- 
pellee. The  cotu't  had  jurisdiction  of  the  person  of  all  the  parties, 
including  the  petitioner,  and  also  had  jurisdiction  of  the  subject  matter. 
The  decree,  as  rendered,  was  never  reversed,  but  is  now  in  full  force 
and  effect  and  fully  executed.  To  now  permit  appellant  to  again  liti- 
gate these  questions  would  be  to  give  no  force  or  effect  to  a  judicial 
decree  to  which  she  was  a  party  and  to  entirely  set  aside  a  judicial 
sale  properly  made.  The  decree  as  rendered  in  the  former  case  was 
res  judicata  of  all  matters  set  up  in  this  petition. 

Complaint  is  made  that  the  premises  were  sold  as  the  property  of 
the  husband,  and  therefore  the  wife  is  entitled  to  dower.  We  have 
nothing  to  do  with  the  justice,  reasonableness  or  correctness  of  that 
decree.  It  cannot  be  collaterally  attacked,  and  if  it  was  wrong  it  was 
the  duty  of  appellant  to  appeal  from  it  and  in  this  way  preserve  her 
rights.  If  she  is  injured  by  the  decree  and  has  lost  her  dower  she 
has  no  one  to  blame  but  herself.  If  the  property  was  hers  originally 
she  should  have  had  the  title  taken  in  her  name.  When  the  deed  was 
made  to  her  she  should  have  filed  it  for  record.  If  she  had  attended 
to  these  matters  at  the  proper  time  and  in  the  proper  way  she  would 
now  be  the  owner  in  fee,  but  as  it  is  she  has  slept  upon  her  rights, 
and  therefore  must  bear  the  burden  of  her  own  negligence.  wShe  recog- 
nized the  provisions  of  the  decree  by  accepting  $1000  of  the  purchase 
money  in  lieu  of  her  homestead,  and  it  would  certainly  be  as  unjust  to 
permit  her  to  have  dower  as  it  would  be  to  again  permit  her  to  claim 
her  homestead. 

We  find  no  reversible  error,  and  the  decree  of  the  circuit  court  dis- 
missing the  petition  will  be  affirmed. 


JAMISON  V.  ZAUSCH. 
(Supreme  Court  of  Missouri,  1909,  227  Mo.  406,  12G  S.  W.  1023.) 

BurGe;ss,  J.     This  is  a  suit  to  partition  two  parcels  of  ground  in  the 
city   of    St.   Louis,   at   the    southwest    corner   of    Prairie    and    lvisl( 


)n 


156  TEUSTS.  (Part  2 

avenues.  Plaintiff  is  the  widower  of  Mary  Jamison,  to  whom 
he  was  married  in  1865,  and  who,  at  the  time  of  her  death,  was  the 
owner  of  the  two  parcels  sought  to  be  partitioned.     .     .     . 

The  sole  material  question  on  this  appeal  is.  whether  the  deed  from 
Kilpatrick  and  wife  deprived  the  plaintiff  of  the  interest  which  he 
claims  under  the  provision  of  the  Act  of  18Q5  (section  2938,  Revised 
Statutes  1899),  which  reads:  "When  a  wife  shall  die  without  any 
child  or  other  descendants  in  being  capable  of  inheriting,  her  widower 
shall  be  entitled  to  one-half  of  the  real  and  personal  estate  belonging  to 
the  wife  at  the  time  of  her  death,  absolutely,  subject  to  the  payment  of 

the  wife's  debts." 

In  construing  the  terms  of  deeds  creating  separate  equitable  estates 
in  the  wife  this  court  has  uniformly  based  its  conclusions  upon  what 
is  found  to  be  the  intention  of  the  parties,  as  ascertained  from  the 
language  employed  in  the  instrument.  The  rule  is  that  if  the  grant 
or  devise  be  to  the  wife  for  her  separate  use,  and  it  clearly  appears 
from  the  conveyance  or  will  that  it  was  the  intention  of  the  grantor 
or  devisor  that  the  husband  should  not  be  tenant  by  the  curtesy,  this 
intention  will  govern,  and  the  husband  will  not  be  entitled  to  curtesy. 
(Tyler  on  Infancy  and  Coverture  (2  Ed.),  p.  431;  1  Washburn  on 
Real  Prop.  (6  Ed.),  sec  321,  p.  147;  McTiguc  v.  McTigue,  116  Mo. 
138;  McBreen  v.  McBreen,  154  Mo.  323;  Woodward  v.  Woodward, 

148  Mo.  241.) 

We  think  that  the  terms  of  the  deed  in  question  make  it  very  plain 
that  it  was  the  intention  of  the  grantors  to  wholly  deprive  the  plain- 
tiff, husband  of   Mrs.  Jamison,   of   his  right  of   curtesy  in  the  land 

conveyed. 

In  the  McTigue  case,  supra,  the  deed  under  which  both  parties  claim- 
ed was  in  its  terms  very  similar  to  the  Kilpatrick  deed,  except  that 
the  trustee  named  therein  was  not  the  husband  of  the  beneficiary  as  in 
this  case.  It  was  held  in  that  case  that  by  the  terms  of  the  deed  an 
equitable  estate  of  inheritance  was  vested  in  the  wife,  which  upon 
her  death  intestate,  descended  to  her  legal  heirs,  free  from  the  curtesy 

of  her  husband. 

In  the  McBreen  case,  supra,  the  court  said:  "Indeed  it  is  the  pre- 
vailing doctrine  in  England  and  the  United  States  that  it  is  not  com- 
petent at  common  law,  in  a  grant  to  a  woman  of  an  estate  of  inher- 
itance, to  exclude  her  husband  from  his  right  of  curtesy;  but  it  is 


Cll.  5)  TRANSFER  OF  TRUST  PROPERTY.  157 

equally  well  settled  that  in  equity  an  estate  may  be  so  limited  as  to 
give  the  wife  the  inheritance,  and  by  words  clearly  denoting  that  in- 
tention, to  exclude  and  deprive  the  husband  of  curtesy;"  citing  Tiede- 
man  on  Real  Prop.  (2  Ed.),  sec.  105;  McTigue  v.  McTigue,  116  Mo. 
138;  Grimball  v.  Patton,  70  Ala.  635;  Rigler  v.  Cloud,  14  Pa.  St.  361 ; 
Pool  V.  Blakie,  53  111.  495;  Haight  v.  Hall,  74  Wis.  152. 

The  plaintiff  rests  his  case  principally  upon  the  authority  of  O'Brien 
V.  Ash,  169  Mo.  283.     But  that  case  is  essentially  diiTerent  from  the 
case  at  bar.     The  deed  construed  in  that  case  was  also  a  conveyance 
to  a  trustee  for  the  sole  and  separate  use  of  the  wife,  free  from  the 
husband's  curtesy,  and  it  was  held  that  the  deed  undertook  to  cut  off 
the  marital  rights  of  only  her  then  husband,  and  not  of  any  future 
husband  she  might  have.  The  husband  referred  to  in  the  deed  having 
died,  the  court  held  that  the  trust  thereupon  ceased  and  terminated, 
and  the  use  became  executed  in  the  beneficiary,  and  did  not  thereafter, 
upon  the  remarriage  of  the  beneficiary,  revive  and  revest  in  the  trustee. 
After  so  construing  the  deed,  the  court  adds :  "In  this  view  of  the  case, 
it  is  unnecessary  to  discuss  whether  the  Act  of  1895  could  affect  prop- 
erty held  by  a  woman,  married  or  unmarried,  under  a  deed  of  settle- 
ment so  formulated  as  to  create  a  separate  equitable  estate  to  the  ex- 
clusion of  all  marital  rights  of  any  future  husband."     In  that  case 
the  court  also  said:     "So  long  as  plaintiff's  wife  was  alive  to  enjoy 
the  use  of  her  property  it  belonged  to  her  free  from  legislative  in- 
terference, and  the  Act  of  1895  could  have  no  effect  or  influence  upon 
it,  or  of  her  use  or  disposition  of  it  whatever ;  but  when  death  came, 
and  she  could  no  longer  enjoy  it,  her  acquisition  ceased,  and  with  it 
the  right  to  direct  its  future  use  and  ownership  only  as  the  legislative 
will  was  indicated  by  the  statute  then  in  force  upon  that  subject."  .  .  . 


IX  RE  BELLAMY.  ELDER  v.  PEARSON. 

(Supreme  Court  of  Judicature,  188.3,  25  Ch.  D.  G20.) 

By  a  deed  of  settlement,  dated  the  3r<l  of  May,  1865,  hereditaments 
held  for  long  terms  of  years  were  assigned  to  trustees  ui)()U  trust  for 
Ann  Bellamy  for  life,  and  after  her  death  upon  trust  for  Charles 
Gamble  for  life,  and  after  his  death  upon  trust  for  Susan  I'atlcn.  for 
life,  and  "from  and  after  the  death  of  the  said  Susan  Patten,  then 


]58  TRUSTS.  (Part  2 

upon  trust  to  assign  and  assure  the  said  leasehold  premises  unto  Miriam 
Patten  for  her  own  use  and  benefit  absolutely." 

Miriam  Patten  married  John  Culmer  in  September,  1870,  and  died 
on  the  21st  of  December,  1882,  leaving  him  surviving.     .     .     . 

Kay,  J.  The  question  is  whether  it  is  necessary  for  Mr.  Culmer 
to  take  out  administration  to  his  wife  in  order  to  complete  his  title 
to  these  leaseholds. 

There  is  no  doubt  that  as  to  all  chattels  real  of  the  wife  vested 
in  possession  during  the  coverture  the  husband  surviving  need  not 
take  out  administration  to  the  wife.  And  the  rule  is  the  same  as  to 
an  equitable  term. 

The  cases,  which  I  have  examined  in  the  original  reports,  are 
collected  in  Williams  on  Executors,  8th  Ed.  vol.  i,  p.  701.  In  the 
same  place  it  is  stated,  "But  to  entitle  the  husband  to  the  chattels 
real  of  the  wife,  which  were  not  vested  in  his  possession  in  her  right 
in  her  lifetime,  he  must  make  himself  her  representative  by  becoming 
her  administrator.  As  if  a  feme  sole  be  possessed  of  a  chattel  real 
and  be  thereof  dispossessed,  and  then  take  husband  and  die  before 
recovery  of  possession,  this  right  will  not  survive  to  the  husband,  but 
go  to  the  personal  representative  of  the  wife." 

The  illustration  there  given  seems  to  shew  that  the  writer  was 
referring  to  a  mere  right  of  action,  and  this  is  confirmed  by  the  re- 
ference to  Co.  Litt.  Page  351,  a.,  where  the  words  are,  "Chattels  real 
consisting  merely  in  action,  the  husband  shall  not  have  by  the  inter- 
marriage, unless  he  recovereth  them  in  the  life  of  the  wife,  albeit 
he  survive  the  wife,  as  a  writ  of  right  of  ward,"  &c.,  "whereunto  the 
wife  was  entitled  before  marriage." 

But  then  it  is  argued  that  if  this  be  not  a  mere  right  of  action,  being 
an  interest  in  remainder  in  leaseholds  for  years  after  a  life  estate 
it  is  only  a  possibility,  and  so  could  not  vest  in  the  husband.  Lampet's 
Case,  10  Rep.  46,  b.,  is  an  authority  for  the  proposition  that  such  an 
interest  was  considered  a  possibility,  which  at  that  time  could  not  be 
granted  or  assigned  to  a  stranger  during  the  life  of  the  tenant  for 
life,  though  it  might  be  released  to  the  person  in  possession.  This, 
however,  has  long  been  overruled. 

In  Donne  v.  Hart,  2  Russ.  &  My.  360,  a  reversionary  interest  after 
a  life  estate  in  leaseholds  for  years  was  held  to  be  assignable  by  the 
husband  of  the  reversioner  during  the   existence   of  the  life  estate, 


Ch.  5)  TEANSFER  OF  TRUST  PROPERTY.  159 

and  this  although  the  reversionary  interest  was  contingent.  It  is  there 
stated  that  it  is  clear  that  the  wife's  contingent  legal  interest  in  a  term 
may  be  sold  by  the  husband,  and  there  is  no  difference  in  equity  be- 
tween the  legal  interest  in  and  the  trust  of  a  term. 

In  Duberley  v.  Day,  16  Beav.  33.  a  reversionary  interest  in  lease- 
holds belonging  to  a  wife  was  lield  to  be  assignable  by  the  husband, 
if  it  were  of  such  a  nature  that  it  might  by  possibility  vest  in  the  wife 
in  possession  during  the  converture,  and  the  doctrine  that  such  a  re- 
version was  a  mere  possibility  of  the  wife,  and  as  such  could  not  be 
assigned,  it  was  said  is  ''undoubtedly  exploded  by  the  later  decisions." 

Accordingly  I  must  take  it  to  be  settled  that  a  vested  reversionary 
interest,  subject  to  a  life  estate  in  leasehold  property,  which  might 
by  possibility  come  into  possession  during  the  coverture  is  no  longer 
treated  as  a  mere  possibility  which  is  unassignable,  but  it  is  like  any 
other  chattel  real  of  the  wife  in  this  respect  at  least,  namely,  that  the 
husband  can  assign  it  during  the  coverture,  and  while  it  is  still  rever- 
sionary. 

I  am,  therefore,  unable  to  consider  such  an  interest  as  a  mere  right 
in  action,  or  indeed  as  a  right  in  action  in  any  true  sense  of  those 
words,  and  consequently  it  does  not  seem  to  :ne  necessary  on  principle 
or  authority  that  the  husband  surviving  (although  the  wife  died  before 
the  interest  vested  in  possession),  should  take  out  administration  to 
the  wife  in  order  to  complete  his  title.     .     .     . 


RHOADES  V.  BLACKIvSTON. 
(Supreme  Court  of  Massachusetts,  1871,  106  Mass.  334.) 

Contract  for  breach  of  an  agreement  to  sell  and  deliver  coal.  At 
the  trial  in  ihis  court,  before  Colt,  J.,  the  plaintilT  testified  that  after 
the  making  of  the  alleged  agreement,  and  its  breach  by  the  defendants, 
he  was  adjudged  a  bankrupt;  "that  he  made  tlu-  agreement  while  act- 
ing as  agent  of  Alonzo  V.  Lyndc,  under  authority  from  him  and  made 
it  as  agent;  and  he  owed  Lyndc  a  lar^c  sum  of  monry,  and  had  trans- 
ferred his  coal  business  to  him  as  security  for  the  debt  ;  that  it  was 
agreed  between  them,  that  Lynde  was  to  furnish  the  capital,  and  was 
to  receive  all  the  profits  of  the  l)usiness,  excei)t  enough  to  sui)port  the 
plaintiff  and  his  family,  until  the  debt   should  be  paid;  tiiat  after  tlu; 


160  TEUSTS.  (Part  2 

debt  was  paid  the  property  was  to  be  his,  and  the  profits  of  the  busi- 
ness; and  that  he  had  no  property  in  the  coal,  or  interest  other  than 
as  stated,  and  his  own  money  was  not  invested  in  the  business ;  but 
that  he  was  to  have  his  hving  out  of  the  business  until  the  debt  was 
paid." 

The  defendants  objected  that  the  plaintiff  could  not  maintain  the 
action,  and  the  judge  reported  the  case  for  the  determination  of  the 
full  court,  if  the  court  should  be  of  opinion  that  the  plaintiff  could 
not  maintain  the  action,  judgment  to  be  for  the  defendants,  otherwise 
the  case  to  stand  for  trial.     .     .     . 

Colt,  J.  .  .  .  The  defendants  further  contend  that  the  plain- 
tiff's right  of  action  passed  to  his  assignees  in  bankruptcy,  who  were 
appointed  in  procedings  commenced  after  the  alleged  breach.  It  ap- 
pears that  the  plaintiff  made  the  contract  in  the  course  of  a  business 
which  he  was  carrying  on  for  Alonzo  V.  Lynde,  and  which  he  had 
previously  transferred  to  Lynde  as  security  for  a  debt,  with  the  agree- 
ment that  after  the  debt  was  paid  the  property  was  to  be  his  with  the 
profits  of  the  business,  Lynde  furnishing  all  the  capital  and  receiving 
all  the  profits,  except  enough  for  the  support  of  the  plaintiff  and  his 
family,  until  his  debts  should  be  paid.  And  it  is  claimed  that  upon 
these  facts  the  plaintiff  had  such  a  legal  and  equitable  interest  in  the 
contract  that  it  must  pass  by  the  bankruptcy  proceedings  to  the  as- 
signees. 

Assignees  in  bankruptcy  do  not,  like  heirs  and  executors,  take  the 
whole  legal  title  in  the  bankrupt's  property.  They  take  such  estate  only 
as  the  bankrupt  had  a  beneficial  as  well  as  legal  interest  in,  and  which 
is  to  be  applied  for  the  payment  of  his  debts.  To  a  plea  that  the 
plaintiff  is  a  bankrupt,  and  that  all  his  estate  vested  in  his  assignees, 
it  is  a  good  replication  that  the  whole  beneficial  interest  in  the  contract 
or  demand  in  suit  was  vested  by  prior  assignment  in  a  third  party, 
for  whose  benefit  the  suit  is  prosecuted.  If  however  the  bankrupt 
has  any  beneficial  interest  in  the  avails  of  the  suit,  then  the  whole  legal 
title  vests  in  his  assignee,  and  the  action  must  be  in  his  name,  for 
there  cannot  be  two  legal  owners  of  one  contract  at  the  same  time. 
Webster  v.  Scales,  4  Dougl.  7;  Winch  v.  Keeley,  1  T.  R.  619;  Carpen- 
ter v.  Marnell,  3  B.  &  P.  40.     .     .     . 

The  court  are  of  opinion  that  the  rule  in  these  cases.  .  .  .  can- 
not be  applied  to  defeat  the  plaintiff's  action  here.    The  pledged  prop- 


Ch.  5)  TRANSFER  OF  TRUST  PROPERTY.  161 

erty  consisted  of  a  business  to  be  carried  on  with  the  capital  of  the 
party  to  whom  it  was  transferred.  The  contracts  made  in  the  course 
of  it  were  the  contracts  of  the  principal.  The  agent  had  no  immediate 
beneficial  interest  in  them.  His  interest  was  only  in  the  future  profits, 
and  that  contingent  on  their  being  sufficient  to  pay  the  debt  he  owed. 
The  contract  of  Lynde  to  restore  the  property  to  the  plaintiff  was 
executory,  and  there  was  no  claim  that  the  contingency  had  happened 
upon  which  the  business  and  property  were  to  become  the  plaintiff's. 
The  inference  from  the  facts  reported  is,  that  it  did  not.  The  support 
which  he  was  to  have  for  himself  and  his  family  was  plainly  in  com- 
pensation for  his  agency  in  the  business.  And  there  is  nothing  to  show 
that  the  creditors  in  bankruptcy  have  any  valuable  i;iterest  in  the  con- 
tract declared  on.     .     .     . 


TILTJNGHAST  v.  BRADFORD. 
(Supreme  Court  of  Rhode  Island,  1858,  5  R.  I.  205.) 

Demurrer  to  a  bill  in  equity,  filed  by  the  plaintifif  as  assignee,  under 
the  "poor  debtor's  act,"  of  Hezekiah  Sabin  the  younger,  against  him. 
and  against  Nicholas  H.  Bradford,  trustee  under  the  will  of  TTezekiah 
Sabin,  Sen.,  of  certain  real  estate  situated  mi  Westminster  Street  in 
Providence,  held  by  said  Bradford  in  trust  for  the  benefit  of  said 
Hezekiah  the  younger.     .     .     . 

Ames,  C.  J.  The  demurrer  to  this  bill  is  attempted  to  be  supported, 
substantially,  upon  two  grounds:  First,  that  Hezekiah  Sabin,  Jr.,  had 
not  such  an  equitable  interest,  under  his  father's  will,  in  the  trust  prop- 
erty in  question,  that  he  could  alicne  the  same  to  the  plaintiff  in  trust 
for  his  creditors.     ... 

The  nature  of  the  debtor's  interest  in  the  trust  property,  under  liis 
father's  will,  was  an  equitable  estate  for  life,  with  a  power  of  dis- 
posing of  the  remainder  in  fee  by  will  ;  in  default  of  such  (lis])osition 
such  remainder  to  be  conveyed  to  his  heirs  at  law;  there  being  also  a 
clause  in  the  will  against  anticipation  and  alienation  of  the  rents  .-nid 
profits  during  the  debtor's  life.  Tt  is  (|uite  clear,  tli.al  it  was  tlie  in- 
tention ot"  the  testator  to  make  an  alinienlary  provision  lor  his  son 
during  life,  which  should  -ive  liiiii  all  the  advantages  of  an  estate  in 

2  Eq.— 11 


I 


162  TRUSTS.  (Part  2 

fee,  without  the  legal  incidents  of  such  an  estate, — inahenability,  un- 
less by  will,  and  subjectiveness  to  the  payment  of  the  son's  debts. 
Such  restraints,  however,  are  so  opposed  to  rhe  nature  of  property, — 
and,  so  far  as  subjectiveness  to  debts  in  concerned,  to  the  honest  policy 
of  the  law, — as  to  be  totally  void,  unless  indeed,  which  is  not  the  case 
here  in  the  event  of  its  being  attempted  to  be  aliened,  or  seized 
for  debts,  it  is  given  over  by  the  testator  to  some  one  else.  This  has 
been  the  settled  doctrine  of  a  court  of  chancery,  at  least  since  Brandon 
V.  Robinson,  18  Ves.  429;  and  in  application  to  such  a  case  as  this,  is 
so  honest  and  just,  that  we  would  not  change  it  if  we  could.  Certainly, 
no  man  should  have  an  estate  to  live  on,  but  not  an  estate  to  pay  his 
debts  with.  Certainly,  property  available  for  the  purposes  of  pleasure 
or  profit,  should  be  also  amenable  to  the  demands  of  justice.     .     .     . 


STEIB  V.  WHITEHEAD. 

(Supreme  Court  of  Illinois,  1884,  111  III.  247.) 

MuLKEY^  -J.  Asahel  Gridley,  by  his  last  will  and  testament,  de- 
vised to  trustees  certain  valuable  real  estate,  upon  the  following  trusts, 
namely :  "To  keep  said  lands  and  tenements  well  rented ;  to  make 
reasonable  repairs  upon  the  same ;  to  pay  promptly  all  taxes  and 
assessments  thereon ;  to  keep  the  buildings  thereon  reasonably  insured 
against  damages  by  fire ;  to  pay  over  all  remaining  rents  and  income 
in  cash,  into  the  hands  of  my  said  daughter,  Juliet,  in  person,  and  not 
upon  any  written  or  verbal  order,  nor  upon  any  assignment  or  transfer 
by  the  said  Juliet.     .     .     , 

The  trustees  named  in  the  will  having  refused  to  act,  by  a  proper 
proceeding  in  chancery  William  H.  Whitehead,  the  defendant  in  error, 
was  duly  appointed  trustee  in  their  stead,  and  thereupon  took  posses- 
sion of  the  devised  premises,  and  otherwise  assumed  the  duties  of  the 
trust.  Certain  moneys,  being  a  part  of  the  rents  and  profits  of  the 
estate,  having  come  into  his  hands,  as  trustee,  and  which,  under  the 
provisions  of  the  will,  it  was  his  duty  to  pay  over  to  Juliet,  the  daughter, 
were  attached  in  his  hands  by  one  of  her  creditors.  The  trustee  ap- 
peared and  filed  an  answer,  as  garnishee,  setting  up  the  trust  and  the 
special  provisions  of  the  will  above  cited,  and  the  question  presented 


Cll.  5)  TRANSFER  OF  TRUST  PROPERTY.  163 

for  determination  is,  whether  the  money  thus  held  by  him  w^s  subject 
to  garnishment. 

The  authorities  are  not  in  accord  on  this  subject.  Under  the  rule 
as  laid  down  by  the  courts  of  England,  and  by  the  courts  of  final  re- 
sort in  a  number  of  states  of  the  Union,  the  fund  attached  would  clear- 
ly be  subject,  in  equity,  to  the  payment  of  the  daughter's  debts.  (Til- 
linghast  v.  Bradford.  5  R.  I.  205 ;  Smith  v.  Moore,  ^7  Ala.  330 ;  Heath 
V.  Bishop,  4  Rich.  Eq.  46;  Mcllvain  v.  Smith,  42  Mo.  45.)  A  contrary 
rule  prevails  in  Pennsylvania,  Massachusetts,  and  perhaps  other  States, 
which  seems  to  be  supported  by  the  reasoning  of  the  Supreme  Court  of 
the  United  States  in  Nichols  v.  Eaton,  91  U.  S.  716.  The  question, 
so  far  as  we  are  advised,  is  a  new  one  in  this  court,  and  in  view  of  the 
respectable  authority  to  be  found  on  either  side  of  it,  we  feel  at  liberty 
to  adopt  that  view  w^hich  is  nearest  in  accord  with  our  convictions  of 
right  and  a  sound  public  policy. 

That  is  was  the  intention  of  the  testator  to  place  the  net  income 
of  the  property  beyond  the  control  of  his  daughter  and  her  creditors 
while  in  the  hands  of  the  trustee,  is  manifest,  and  we  perceive  no  good 
reason,  nor  has  any  been  suggested,  why  this  intention  should  not  be 
given  effect.  We  fully  recognize  the  general  proposition  that  one 
can  not  make  an  absolute  gift  or  other  disposition  of  property,  particu- 
larly an  estate  in  fee,  and  yet  at  the  same  time  impose  such  restrictions 
and  limitations  upon  its  use  and  enjoyment  as  to  defeat  the  object  of 
the  gift  itself,  for  that  would  be,  in  effect,  to  give  and  not  to  give  in 
the  same  breath.  Nor  do  we  at  all  question  the  general  principle  that 
upon  the  absolute  transfer  of  an  estate,  the  grantor  cannot,  by  any 
restriction  or  limitations  contained  in  the  instrument  of  transfer, 
defeat  or  annul  the  legal  consequences  which  the  law  annexes  to  the 
estate  thus  transferred.  If,  for  instance,  upon  the  transfer  of  an 
estate  in  fee,  the  conveyance  should  provide  that  the  estate  thereby 
conveyed  should  not  be  subject  to  dower  or  to  curtesy,  or  that  it  should 
not  descend  to  the  heirs  general  of  the  grantee  upon  his  dying  intes- 
tate, or  that  the  grantee  should  have  no  power  of  disposition  over  it, 
the  provision,  in  either  or  these  cases,  would  clearly  he  inoperative 
and  void,  because  the  act  or  thing  forbidden  is  a  right  or  incident 
which  the  law  annexes  to  every  estate  in  fee  simple,  and  to  give  ef- 
fect to  such  provisions  would  be  simply  ])('rmitting  individuals  to 
abrogate  and  annul  the  law  of  tlie   State  by   mere  private  contract. 


164  TRUSTS.  (Part  2 

This  can  not  be  done.  But  while  this  unquestionably  is  true,  it  does 
not  necessarily  follow  that  a  father  may  not,  by  will  or  otherwise,  make 
such  reasonable  disposition  of  his  property,  when  not  required  to 
meet  any  duty  or  obligation  of  his  own,  as  will  effectually  secure  to 
his  child  a  competent  support  for  life,  and  the  most  appropriate,  if  not 
the  only,  way  of  accomplishing  such  an  object  is  through  the  medium 
of  a  trust.  Yet  a  trust,  however  carefully  guarded  otherwise,  would  in 
many  cases  fall  far  short  of  the  object  of  its  creation,  if  the  father, 
in  such  case,  has  no  power  to  provide  against  the  schemes  of  designing 
persons,  as  well  as  the  improvidence  of  the  child  itself.  If  the  bene- 
ficiary may  anticipate  the  income,  or  absolutely  sell  or  otherwise  dis- 
pose of  the  equitable  interest,  it  is  evident  the  whole  object  of  the 
settlor  is  liable  to  be  defeated.  If,  on  the  other  hand,  the  author  of 
the  trust  may  say,  as  was  done  in  this  case,  the  net  accumulations  of 
the  fund  shall  be  paid  only  into  the  hands  of  the  beneficiary,  then  it 
is  clear  the  object  of  the  trust  can  never  be  wholly  defeated.  What- 
ever the  reverses  of  fortune  may  be.  the  child  is  provided  for.  and  is 
effectually  placed  beyond  the  reach  of  unprincipled  schemers  and  sharp- 
ers. 

The  tendency  of  present  legislation  is  to  soften  and  ameliorate, 
as  far  as  practicable,  the  hardships  and  privations  that  follow  in  the 
wake  of  poverty  and  financial  disaster.  The  courts  of  the  country,  in 
the  same  liberal  spirit,  have  almost  uniformly  given  full  effect  to  such 
legislation.  The  practical  results  of  this  tendency,  we  think,  upon  the 
whole,  have  been  beneficial,  and  we  are  not  inclined  to  render  a  decision 
in  this  case  which  may  be  regarded  as  a  retrograde  movement.  The 
creditors  of  the  daughter  have  no  ground  to  complain  that  they  have 
been  misled  or  wronged  in  consequence  of  the  provision  made  for  her 
by  her  father.  It  was  his  own  bounty,  and  so  far  as  they  are  con- 
cerned he  had  the  right  to  dispose  of  it  as  he  pleased.  The  property 
was  not  placed  in  her  possession  so  that  she  might  appear  as  owner 
when  she  was  not,  and  thereby  obtain  credit.  An  examination  of  the 
public  records  would  have  shown  that  she  had  no  power  to  sell  or 
assign  her  equitable  interest, — that  the  extent  of  her  right  was  to  re- 
ceive the  net  accumulations  of  the  trust  estate  from  the  hands  of  the 
trustee,  and  that  these  accumulations  did  not  become  absolutely  hers, 
so  as  to  render  them  subject  to  legal  process  for  her  debts,  until  actual- 
ly paid  to  her.     .     .     . 


Cll.    5)  TRANSFER    OF    TRUST     PROPERTY.  165 


BUwSHONG  V.  TAYLOR. 
(Supreme  Court  of  Missouri,  1884,  82  Mo.  660.) 

Sherwood,  J.  This  was  a  proceeding  in  equity  and  /';/  rem.  Its 
object  was  to  subject  certain  church  property  of  the  Methodist  Epis- 
copal Church  to  the  payment  of  a  sum  of  money  which  became  due 
to  the  plaintiff,  because  of  a  loan  made  by  him  to  the  trustees  of  that 
church,  for  which  loan  a  note  was  executed  by  the  trustees  to  plain- 
tiff for  $1,250,  and  a  like  note  to  Newkirk,  and  the  .board  of  trustees, 
also,  ordered  that  a  mortgage  on  the  church  property  be  executed  for 
the  purpose  of  securing  these  notes,  but  the  mortgage  was  never  made. 
The  plaintiff'  was  successful  in  the  trial  court  in  subjecting  the 
church  property  to  the  payment  of  his  debt.       .     .     . 

Now  as  to  the  method  of  procedure  for  enforcing  the  obligation 
created  by  the  trustees  of  the  church.  We  are  of  opinion  that  the  trus- 
tees were  the  only  necessary  parties  defendant.  They  were  selected  by 
the  association  to  hold  and  manage  the  property  for  the  sake  of  con- 
venience, and  there  is  no  necessity  to  look  beyond  them.     .     .     . 

The  trustees  were  empowered  by  those  terms  to  mortgage  or  sell 
church  property  in  discharge  of  debts  for  which  they  had  become 
responsible.  They  have  failed  to  perform  their  duty  in  this  regard 
to  the  plaintiff,  and  the  arm  of  the  court  of  equity  is  not  too  short 
to  reach  them  and  compel  a  performance  of  that  duty.  Indeed,  it  may 
be  taken  for  granted  that  plaintiffs  incurred  the  debt  for  the  benefit 
of  the  society  and  with  their  approval  relying  upon  the  assurances 
contained  in  the  book  of  discipline,  and  on  the  promise  made  by  the 
trustees  that  a  mortgage  should  be  executed  to  secure  the  debt.  Linn 
v.  Carson,  32  Gratt.  170,  sustains  this  position.  And  it  is  immaterial 
that  in  that  case  the  plaintiff  was  one  of  the  trustees  of  the  church; 
for  the  plaintiff  here  was  a  surety  for  the  trustees,  and  they  hc'mg 
entitled  under  the  terms  of  the  discipline  to  a  mortgage  on,  or  sale 
of,  the  property,  concerning  which  the  debt  was  incurred,  he  will  on 
the  plainest  and  most  familiar  principles  be  entitled  to  be  subrogated 
to  all  their  rights  and  remedies.  1  vStory  Ivj.  jnr.,  §§  499,  499e.  502; 
Furnold  v.  Bank,  44  Mo.  336.  The  trustees  being  entitled  to  mortgage 
or  to  sell  the  property,  and  refusing  to  do  their  duty,  eciuity  will  afford 


166  TRUSTS.  (Part  2 

relief  by  decreeing  that  to  be  done   which     affords     the     adequate 
remedy.     .     .     . 


CITY  OF  ST.  LOUIS  v.  KEANE. 

(Missouri  Court  of  Appeals,  1887,  27  Mo.  App.  642.) 

RoMBAUER,  J.  Under  date  of  April  28,  1884,  the  city  of 
.St.  Louis  entered  into  a  written  contract  with  John  C.  Murphy  as 
principal,  and  the  interpleader,  William  Keane,  as  one  of  his  sureties, 
whereby  the  latter  covenanted  to  construct  Gingrass  sewer  in  part, 
and  the  city  agreed  to  pay  Murphy,  for  the  work  and  materials,  cer- 
tain specified  prices.     .     .     . 

The  court  found  that  William  Keane  had  a  judgment  demand  against 
Murphy  for  $834.00  for  money  advanced  towards  the  construction  of 
the  sewer;  that  Thaddeus  Smith  had  a  demand  of  $793.71,  on  open 
account,  for  materials  furnished  to  Murphy  for  the  same  purpose,  and 
that  Thorne  &  Hunkins  had  a  demand  of  $117.00  on  open  account, 
for  materials  furnished  in  like  manner.  Concerning  these  facts,  there 
was  no  controversy. 

The  court  further  found,  and  its  finding  is  well  supported  by  the 
evidence,  that  Murphy  made  an  assignment  of  so  much  of  the  fund  in 
the  hands  of  the  city  as  would  satisfy  the  claim  of  Keane  to  the  latter, 
to  which  assignment  the  city  never  assented.  Whereupon,  Keane 
brought  a  suit  in  equity  against  the  city,  to  subject  the  funds  in  its 
hands  to  his  claim  against  Murphy ;  and  that  a  similar  action  was  sub- 
sequently brought  by  Smith. 

Upon  the  facts  so  found,  which  are  partly  conceded,  and  partly 
established  by  evidence,  the  court  decreed  that  the  fund  in  court  be 
distributed  among  the  three  claimants  in  proportion  to  the  amount  of 
their  respective  claims,  after  first  deducting  the  costs  of  the  inter- 
pleader proceedings. 

From  this  decree  all  the  interpleaders  appeal.  Keane  claims  that, 
under  the  evidence,  he  is  entitled  to  the  entire  fund,  and  Smith  and 
Thorne  &  Hunkins  claim  that  he  is  entitled  to  no  part  thereof,  but  that 
the  fund  should  be  divided  between  them  in  proportion  to  the  amount 
of  their  respective  claims,  and  that  Keane  should  be  adjudged  to  pay 
the  costs  of  the  interpleader  proceedings. 


Ch.    5)  DUTIES    OF  A    TRUSTEE.  167 

The  court  evidently  based  its  decision  on  the  well-settled  proposition 
announced  in  Heiman  v.  Fisher  (11  Mo.  App.  275),  that,  when  assets 
are  brought  into  a  court  of  equity  for  distribution,  they  must  be  dis- 
tributed between  all  the  creditors  pari  passic,  regardless  of  the  diligence 
which  any  of  them  may  have  exercised  in  bringing  the  fund  into  court. 
In  this,  however,  the  court  ignored  a  proposition  equally  well  settled, 
that  such  disposition  is  to  be  made  only  when  neither  party  has  a 
superior  equity  or  a  prior  lien  on  the  specific  fund.  This  court,  in 
the  case  referred  to,  distinctly  announces  that,  "when  a  judgment 
creditor  has  sued  out  execution  which  is  returned  nulla  bona,  if  he 
file  a  bill  to  reach  the  equitable  interest  of  his  debtor,  he  may  have, 
by  his  execution  and  legal  diligence,  a  legal  preference  to  the  assistance 
of  the  court  or  a  lien  on  the  equitable  interest," 

In  the  case  at  bar,  Keane  obtained  judgment  against  Murphy.  He 
sued  out  an  execution  on  such  judgment,  which  was  returned  nulla 
bona.  He  thereupon  instituted  a  suit  against  the  city  of  St.  Louis 
and  Murphy  to  subject  Murphy's  funds  in  the  city's  possession  to  the 
lien  of  such  execution  by  way  of  equitable  garnishment.  Such  a  pro- 
ceeding was  upheld  in  Pendleton  v.  Perkins  (49  Mo.  569),  and,  if 
maintainable,  it  is  not  easy  to  discern  how,  on  any  principle  applicable 
to  equity  proceedings,  it  would  fail  to  confer  on  Keane  a  superior 
equity,  entitling  him  to  be  first  satisfied  out  of  the  fund  in  court,  such 
fund  being  admittedly  the  fund  which  he  had  attached,  unless  the 
equities  of  the  interpleading  materialmen  are  superior  to  his. 

The  fund  was  charged  with  this  lien  before  it  was  brought  into 
court  for  distril)ution.  In  no  view  of  the  case,  therefore,  are  the  parties 
before  the  court  entitled  to  a  ratable  distribution  of  the  fund.  Either 
the  equities  of  Keane,  as  a  lienor,  are  superior,  as  above  stated,  in  which 
event  he  is  entitled  to  be  first  satisfied  out  of  the  fund,  or  the  equities 
of  the  materialmen  are  superior,  in  which  event  they  are  entitled  to 
have  their  claim  satisfied  in  preference  to  that  of  Keane;  and,  as  the 
aggregate  of  their  claims  exceeds  in  amount  the  entire  fund,  Keane 
is  entitled  to  nothing. 

On  a  review  of  the  evidence,  we  nmst  hold  that  ilie  last  of  these 
propositions  is  the  only  correct  conclusion  which  can  be  reached.  We 
can  not  see  how  this  case  can,  on  principle,  be  llistinguished  from  the 
case  of  Luthy  v.  Woods  (6  Mo.  App.  67,  72),  decided  by  this  court, 
upon  full  consideration,  on  a  second  appeal.     There,  under  a  similar 


'1<38  TRUSTS.  (Part  2 

clause  in  a  contract^  and  vmder  almost  identical  circumstances,  it  was 
held  that  the  equities  of  the  interpleading  materialmen  arose  from  the 
terms  of  the  contract,  and  the  assent  to  such  terms  by  all  the  parties, 
and  that  such  equities  were  superior  to  those  of  a  general  creditor,  who, 
as  in  the  case  at  bar,  endeavored  to  secure  a  priority  on  the  fund  by 
equitable  garnishment. 

Our  opinion  as  to  the  correctness  of  this  conclusion  is  materially 
aided  by  the  fact  that  Keane  was  a  party  to  the  contract,  that  he 
expressly  assented  to  all  its  terms,  and  that  he  was  well  aware,  when 
he  tried  to  subject  this  fund  to  the  payment  of  his  claim,  that  the  city 
had  retained  it  under  the  terms  of  the  contract,  presumably  for  the 
security  of  the  materialmen. 

It  results  from  the  foregoing  that  the  judgment  rendered  can  not 
be  supported  on  the  evidence.  All  the  judges  concurring,  it  is  ordered 
that  the  judgment  be  reversed  and  the  cause  be  remanded  to  the  trial 
court,  with  directions  to  enter  a  decree  distributing  the  fund  in  court 
ratably  between  the  interpleaders  Smith  and  Thorne  &  Hunkins,  in 
proportion  to  their  respective  claims,  after  first  deducting  all  costs 
accrued  prior  to  the  filing  of  any  interpleas  in  the  case,  and,  as  to 
all  subsequent  costs,  to  render  judgment  against  the  interpleader 
Keane. 


MOORE  V.  McFALL. 

(Appellate  Court  of  Illinois,  1913,  183  111.  App.  628.) 

Thompson,  J.  John  J.  St.  Clair  died  testate  in  Benton,  Franklin 
county,  Illinois,  on  December  22,  1880. 

This  suit  arises  out  of  a  dispute  as  to  what  was  the  intention  and 
what  should  be  the  construction  placed  on  the  language  used  in  his 
will.  The  controverted  part  of  the  will  is  as  follows:  "It  is  my  will 
and  desire  that  my  business,  hardware,  furniture,  tin  shop  and  busi- 
ness as  transacted  by  me  be  continued,  and  for  this  purpose  and  the 
care  and  education  of  my  children  having  confidence  in  my  wife, 
Rebecca  St.  Clair,  I  will  and  bequeath  to  said  Rebecca  St.  Clair,  my 
wife  all  my  real  and  personal  property  of  whatsoever  kind,  all  title  and 
interest  therein,  and   for  the  purpose  of  paying  my  just   debts  and 


Ch.    5)  DUTIES    OF  A    TRUSTEE.  160 

education  and  support  of  herself  and  my  family,  I  hereby  authorize 
her,  if  necessary  to  sell  and  dispose  of  any  of  said  property  and  real 
estate  without  any  order  or  decree  of  Court,  and  that  she  pay  all 
debts  that  may  be  just  without  the  intervention  of  Courts  and  do 
and  perform  all  things  whatsoever  in  regard  to  my  property  for  the 
purpose  of  carrying  out  this  will  as  I  might  lawfully  do. 

I  desire  my  business  carried  on  in  the  name  of  St.  Clair  Brothers 
and  authorize  and  empower  my  Executrix  to  execute  deeds  of  con- 
veyance to  property  she  may  desire  to  sell."     .     .     . 

It  appears  that  after  the  death  of  John  J.  St.  Clair,  the  widow 
formed  a  partnership  with  her  sons,  Charles  and  Guy,  and  carried 
on  the  business  in  the  name  of  St.  Clair  Brothers,  for  the  benefit  of 
the  family  under  the  supposed  authority  given  her  in  the  will.  The 
business  was  thus  conducted  until  some  time  in  the  year  of  1897, 
when  the  business  having  become  unprofitable  the  partnership  was 
dissolved.     The  testator  was  in  debt  about  $20,000  when  he  died. 

While  the  business  was  being  conducted  by  the  said  widow  and 
sons,  and  in  order  to  carry  on  said  business,  the  widow  and  her  said 
sons  borrowed  money  from  appellees,  and  when  the  business  was 
suspended  in  1897  there  was  owing  to  appellee  Cantrell,  for  money 
borrowed  by  the  partnership  and  used  in  the  business,  $1,000  and  in- 
terest. This  indebtedness  was  evidenced  by  a  judgment  note,  and 
Cantrell  took  judgment  by  confession,  on  September  27,  1897,  for 
$1,196.50,  against  all  of  said  partners.  Cantrell  assigned  said  judg- 
ment to  one  Amnion,  and  afterwards  repurchased  said  judgment  and 
by  revivor  proceedings  and  issuing  execution  thereon  kept  the  same 
alive  and  seeks  in  this  proceedings  to  have  the  same  declared  a  lien 
on  the  real  estate  above  described.     .     .     . 

The  rights  of  the  parties  are  conceded  to  rest  upon  the  construction 
of  the  will,  and  such  equities  as  flow  from  the  attempt  of  the  widow  to 
carry  out  its  provision.  The  testator  had  a  family  of  nine  children  and 
a  wife.  Only  one  of  his  children  was  of  age  when  he  executed  his 
will.  Kighl  minor  children  and  his  wife  were  to  be  considered.  Their 
support  and  education  was  the  thing  that  concerned  him,  and  he  sought 
by  his  will  to  make  provision  to  accomplish  that  purpose.  TTe  directed 
his  wife  to  continue  the  business  he  was  engaged  in  as  a  means  to  thai 
end.  He  placed  the  whole  of  hjs  estate  in  the  hands  of  his  wife  with 
specific  directions  to  use  it  in  earing  for  ;in(l  ('(hu-ating  his  childrt'n. 
With  expressed  confidence  in  his  wife,  he  gave  her  all  he  had  without 


170  TRUSTS.  (Part  2 

reserve  to  pay  his  debts,  to  carry  on  the  business,  and  support  and 
educate  their  children.  She  accepted  the  trust  and  made  an  honest 
effort  to  carry  out  the  expressedwish  and  will  of  her  deceased  husband. 
She  kept  the  family  together  and  supported  and  educated  the  children 
during  their  minority.  The  business  was  conducted  under  the  name 
of  St.  Clair  Brothers,  as  requested  by  the  will.  She  associated  her  two 
eldest  sons  in  the  business  with  her,  and  while  there  was  no  positive 
requirement  of  the  will  so  to  do,  the  intimation  was  strongly  that  way, 
when  the  testator  designated  "St.  Clair  Brothers"  as  the  name  under 
which  the  business  was  to  continue.  The  business  ran  along  for  about 
seventeen  years,  but  finally  became  so  unprofitable  that  it  had  to  be 
suspended  altogether,  and  when  closed  up  the  two  debts  forming  the 
basis  of  the  two  judgments  of  appellees  remained  unsatisfied. 

The  main  point  relied  upon  by  appellants,  as  error,  is  the  construc- 
tion given  to  the  will,  that  the  whole  of  the  testator's  property  was  in- 
volved in  the  trust,  appellants  claiming  that  only  the  property  em- 
barked in  the  business  at  the  time  of  the  testator's  death  was  authorized 
by  the  will  to  be  used  in  continuing  the  business. 

A  testator  may  appoint  a  trustee  to  continue  a  business  conducted 
by  him  at  the  time  of  his  decease,  and  may  direct  what  portion  of  his 
property  is  to  be  used.  He  may  also  impress  the  whole  of  his  estate 
with  the  burdens  of  continuing  such  business.  The  intention  of  the 
testator  as  to  what  part  or  how  much  of  his  estate  is  to  be  devoted  to 
such  enterprise  must  be  gathered  from  the  language  employed  in  the 
instrument  creating  the  trust.  The  intention  must  be  found  in  the  will 
itself,  and  when  found  must,  if  possible,  be  given  effect.     .     .     . 

A  careful  reading  of  this  will  forced  the  conclusion  that  the  testator 
intended  to  place  without  reserve  all  of  his  property  in  the  hands  of 
his  wife  to  be  used  for  the  support  of  herself  and  for  the  support  and 
education  of  his  children,  coupling  therewith  a  positive  direction  that 
she  should  continue  the  business.  All  his  assets,  special  and  general, 
were  pledged  to  the  business  under  the  evident  hope  that  the  income 
would  meet  the  requirements  of  the  family  and  procure  the  benefits 
for  them  according  to  his  expressed  wish.  The  residuary  clause 
strengthens  this  view.    It  was  all  trust  property. 

A  court  of  equity  will  lay  hold  on  any  property  so  placed  in  the 
hands  of  a  trustee,  to  satisfy  an  honest  debt  created  in  the  execution 
of  an  express  trust.     The  evidence  shows  that  both  these  sums  of 


Cll.    5)  DUTIES   OF  A    TRUSTEE.  171 

money  were  borrowed  to  carry  on  the  business,  and  were  used  for  that 
purpose.     No  rule  of  law  has  been  pointed  out  which  prohibits  the 
application  of  equitable  principles.     It  would  be  inequitable  to  defeat 
appellees'  claims  and  the  decree  of  the  trial  court  will  be  affirmed. 
Affirmed. 


N.  J.  TITLE  GUARANTEE  &  TRUST  CO.  v.  PARKER. 

(New  Jersey  Court  of  Chancery,  1915,  84  N.  J.  Eq.  351,  93  Atl.  .196.) 

HowELL_,  V.  C.  The  essential  difference  between  the  two  instru- 
ments above  recited  lies  in  the  final  destination  of  the  fund  of  which 
Mr,  and  Mrs.  Parker  v/ere  life  tenants.  The  earlier  document  provides 
for  its  distribution  in  accordance  with  Mr.  Parker's  last  will  and 
testament,  or,  if  he  should  die  intestate,  for  its  distribution  among 
such  persons  as  would  be  entitled  to  receive  the  same  under  the  intes- 
tate laws  of  New  York  if  he  had  died  intestate  and  a  citizen  and 
resident  of  that  state.  It  is  obvious  that  in  case  it  should  be  found  that 
the  instrument  of  1903  is  valid  and  is  subsisting,  the  whole  of  the 
estate  in  question  is  disposed  of  thereby,  and  that  in  that  case  there 
is  nothing  left  for  the  second  instrument  to  operate  on.  It  therefore 
becomes  necessary  at  the  outset  to  determine  upon  the  validity  of  the 
earlier  instrument.  If  that  is  irrevocable,  as  by  its  terms  it  purports 
to  be,  and  is  still  in  force,  then  and  in  such  case  the  distribution  of  the 
fund  must  be  in  accordance  with  its  provisions. 

The  general  rule  is  that  a  completed  trust,  without  reservation  of 
power  of  revocation,  can  only  be  revoked  by  consent  of  all  the  cestuis ; 
and  that  even  a  voluntary  trust  for  the  benefit  wholly  or  partly  of 
some  person  or  persons  other  than  the  grantor  if  once  perfectly  created 
and  the  relation  of  trustee  and  cestui  que  trust  is  once  established,  will 
be  enforced,  though  the  settlor  has  destroyed  the  deed  or  has  attemi)tcd 
to  revoke  it  by  making  a  second  voluntary  settlement  of  the  same 
property,  or  otherwise,  or  if  the  estate  by  some  accident  afterwards 
becomes  revested  in  the  settlor.  Perry,  Trusts,  §  104.  This  is  the 
undoubted  rule  in  New  Jersey.  Isham  v.  Delaware,  Lackawainia  ami 
Western  Railroad  Co..  11  N.  J.  Eq.  227.  Tlurc  Thomas  C.  Trumbull 
conveyed  land  to  his  father,  John  M.  Tninil.nll.  in  trust,  to  he  leased 


172  TRUSTS.  (Part  2 

until  April  1st,  1840,  the  rents  being  payable  to  Thomas's  two  sisters, 
and  after  that  date  to  be  sold  for  the  highest  price  they  would  bring, 
the  proceeds  to  be  invested,  the  interest  paid  to  said  sisters  during  life, 
and  to  their  children  after  death,  until  the  youngest  child  should  be 
twenty-one,  and  then  the  principal  to  be  paid  to  the  said  children  in 
equal  parts  per  capita.  In  1836  the  two  sisters  joined  with  the  trustee, 
their  father,  in  reconveying  the  lands  to  the  original  grantor.  It  was 
held  that  the  conveyance  did  not  transfer  the  legal  title  to  the  original 
grantor.  In  Gulick  v.  Gulick,  39  N.  J.  Eq.  401,  the  husband  conveyed 
lands  to  his  wife,  she  to  hold  the  same  in  trust  for  his  benefit  during 
his  lifetime,  and  at  his  death  to  sell  the  same  and  divide  the  proceeds 
between  his  widow,  if  livings  and  their  children  or  grandchildren.  It 
was  held  that  this  was  a  trust  which  must  be  maintained  inviolate,  and 
that  the  husband  and  wife  could  not  substitute  another  trust  in  relation 
to  the  same  lands  in  such  a  manner  as  to  affect  the  interests  of  the  chil- 
dren and  grandchildren.     .     .     . 

When,  therefore,  Mr.  Parker  executed  the  original  instrument  he 
created  a  life  estate  in  himself,  with  remainder  to  such  persons  as  he 
should  by  his  last  will  appoint,  and  in  default  of  such  appointment, 
to  his  heirs-at-law  and  next  of  kin  under  the  intestate  laws  of  the 
State  of  New  York,  and  having  executed  a  last  will,  in  pursuance  of 
the  power  and  reservation  contained  in  the  trust  deed,  by  which  he 
gave  the  residuum  of  his  estate,  including  the  trust  fund  in  question, 
to  the  children  of  his  brother,  he  thereby  created  remaindermen  who, 
under  the  provisions  of  the  trust  instrument,  become  entitled,  under 
the  rules  of  law  above  stated,  to  the  capital  of  the  fund.  Having  thus 
irrevocably  disposed  of  the  remainder,  he  could  make  no  further  or 
other  disposition  of  it  without  the  consent  of  the  remaindermen  whom 
he  had  so  created,  and,  inasmuch  as  such  consent  cannot  be  had,  the 
fund  goes  irrevocably  to  them.     .     .     . 


KEYES  V.  CARLETON. 

(Supreme  Court  of  Massachusetts,  1886,  141  Mass.  45,  6  N.  E.  524.) 

Bill  in  equity,  filed  April  17,  1884,  to  have  a  trust  created  by  the 
plaintiff,  by  a  certain  deed  to  the  defendants  William  E.  Carleton  and 


Ch.    5)  DUTIES    OF  A    TRUSTEE.  173 

Charles  E.  Abbott,  as  trustees,  declared  null  and  void,  and  that  the 
trustees  be  ordered  to  account  for  and  pay  over  to  the  plaintiff  the 
whole  of  the  trust  fund. 

By  the  deed,  a  copy  of  which  was  annexed  to  the  bill,  the  plaintiff, 
in  consideration  of  five  dollars  to  her  paid  by  Carleton  and  Abbott, 
and  "the  natural  love  and  affection  she  bears  for  her  children."  con- 
veyed to  Carleton  and  Abbott  a  certain  parcel  of  land  in  Denver, 
Colorado,  upon  the  following  trusts :  "To  manage,  let,  and  take  care 
of,  to  collect  and  receive  the  rents,  increase,  uses,  issues,  and  profits 
thereof,  to  pay  over  and  account  for  the  same  to  the  said  Mary  E. 
Keyes,  or  for  her  use,  during  her  life,  and  after  her  decease  to  pay 
over  and  account  for  the  same  to  her  children,  or  for  their  use.  To 
sell  and  convey  the  same  in  fee  simple  at  their  direction,  discharged  of 
all  trusts,  and  at  any  time  after  the  decease  of  the  said  Mary  E.  Keyes, 
if  they  shall  see  fit  and  proper,  but  only  in  such  case,  to  convey  the 
same  to  the  children  or  next  of  kin  of  the  said  Mary  E.  Keyes,  and  in 
case  it  shall  not  be  so  conveyed  during  the  lifetime  of  the  said  children, 
then  to  convey  the  same  to  their  issue."     .     .     . 

The  bill  alleged  that  the  plaintiff's  intention  in  signing  the  deed  was 
to  place  her  real  estate  in  such  position  and  condition  that  her  husband 
could  not  have  any  control  over  it  in  her  lifetime;  and  that,  if  she 
should  die  before  her  husband,  it  should  go  to  her  children;  that,  at 
the  time  of  signing  the  deed,  she  was  greatly  disturbed  in  mind,  and  did 
not  understand  the  full  effect  of  the  deed ;  that  she  supposed,  in  case 
of  her  husband's  death  before  hers,  the  estate  would  be  reconveyed 
to  her  discharged  of  trusts ;  and  that  she  executed  the  deed  under  an 
entire  mistake  and  misapprehension  of  its  force  and  effect,  as  bearing 
upon  her  rights  in  case  her  husband  died  before  her.     .     .     . 

Morton,  C.  J.  It  is  settled  by  the  uniform  course  of  the  decisions 
in  this  Commonwealth  that  a  voluntary  settlement,  fully  executed  by 
a  person  of  sound  mind,  without  any  mistake,  fraud  or  undue  in- 
fluence, is  binding  upon  the  settler,  and  cannot  be  revoked,  except  so 
far  as  a  power  of  revocation  has  been  reserved  in  the  deed.  Viney 
V.  Abbott,   109  Mass.  300;  Sewall  v.   Roberts,   115   Mass.  262,  and 

cases  cited. 

In  the  case  before  us,  the  plaintiff,  acting  deliberately  and  under 
the  advice  of  counsel,  executed  the  deed  of  settlement,  and  there  is 
no  pretence  of  any  fraud,  collusion,  or  undue  influence.    The  deed  con- 


174  TEUSTS.  (Part  2 

tains  no  power  of  revocation,  and  it  is  clear  that  the  power  of  revo- 
cation was  intentionally  omitted.  As  first  drafted,  the  deed  created  a 
dry  trust  in  favor  of  the  settler,  which  probably  could  have  been  re- 
voked by  her  at  any  time.  But  if  she  had  retained  a  power  of  revo- 
cation, it  would  have  defeated  one  of  the  principal  objects  of  the  settle- 
ment, which  was  to  protect  her  from  the  threats,  or  ilnportunities,  or 
influence  of  her  husband,  and  therefore  the  deed  was  altered  to  its 
present  form.  Both  parties  understood  that  she  was  not  to  have  the 
power  to  revoke  it.  It  is  not,  therefore,  a  case  like  some  of  those  cited 
by  the  plaintiff,  where  both  parties  supposed  the  settlement  to  be  re- 
vocable, and  the  power  to  revoke  was  omitted  by  mistake.  See  Ayls- 
worth  V.  Whitcomb,  12  R.  I.  298;  Garnsey  v.  Mundy,  9  C.  E.  Green, 
243,  and  cases  cited. 

The  justice  who  heard  this  case  has  found  that  no  fraud  or  impo- 
sition was  practiced  on  her;  that  the  deed  was  carefully  read  over  to 
her ;  that  there  was  no  mistake,  in  the  sense  that  she  thought  the  deed 
contained  any  other  or  different  provision  than  in  fact  it  contained, 
and  no  accident,  in  the  sense  that  anything  was  omitted  which  was  in- 
tended to  be  put  in ;  and  also  that  the  contingency  of  her  surviving  her 
husband  was  not  in  her  mind  or  in  that  of  her  advisers,  and,  if  it  had 
been,  there  was  no  means  of  determining  what  the  provision,  if  any, 
would  have  been.  From  these  findings,  it  is  clear  that  there  was  no 
mistake,  in  the  sense  that  she  wrongly  apprehended  the  contents  of 
the  deed.  The  most  that  can  be  said  is,  that  she  did  not,  at  the  time 
she  executed  the  deed,  anticipate  or  have  in  her  mind  what  would  be 
the  legal  effect  in  the  contingency  of  her  husband's  dying  before  her. 
She  did  not,  at  the  time,  think  of  this  contingency,  but  this  is  not  a 
mistake  which  will  justify  setting  aside  a  settlement,  especially  when 
it  is  not  shown  that,  if  this  contingency  had  been  in  her  mind,  she  would 
have  made  a  deed  in  any  respect  different.  But  this  was  not  a  purely 
voluntary  settlement.  It  appears  that  she  was  in  financial  difficulties 
and  in  present  need  of  money,  and  that  her  brother  advanced  her,  by 
way  of  loan,  $600,  as  a  part  of  the  transaction,  and  the  condition  that 
she  would  execute  this  deed  of  trust.  It  seems  to  have  been  a  family 
arrangement  to  save  her  property  for  the  benefit  of  her  children,  and 
to  protect  it,  not  only  from  the  demands  of  her  husband,  but  possibly 
from  her  own  improvidence. 

It  may  be  that  the  fact  that  there  was  this  pecuniary  consideration 
would  not  prevent  a  court  of  equity  from  setting  aside  the  settlement, 


^  ll-    5)  DUTIES    OF  A    TRUSTEE. 


175 


Upon  proof  of  fraud  or  concealment,  or  upon  proof  of  any  materia^ 
misapprehension  on  her  part  of  facts  which,  if  known  and  called  to  her 
attention,  would  have  led  to  a  settlement  of  a  different  character.  But 
it  throws  some  light  upon  the  transaction,  and  tends  to  show  that  her 
failure  to  think  of  the  contingency  of  her  husband's  death  was  im- 
material, and  that,  if  she  had  thought  of  it,  there  would  have  been 
no  change  in  the  provisions  of  the  deed.  We  are  of  opinion  that  the 
plaintiff  does  not  show  sufficient  cause  for  setting  aside  the  settlement, 
voluntarily  and  fairly  made  by  her. 
Bill  dismissed. 


EDWARDS  v.  WELTON. 

(Supreme  Court  of  Missouri,   (1857)  25  Mo.  378.) 

Scott,  J.  This  is  an  attempt,  by  an  action  in  the  nature  of  trover, 
to  execute  a  constructive  trust.  The  prayer  of  the  petition  is  for  the 
possession  and  delivery  of  the  slave,  and  in  default  of  delivery,  a 
judgment  for  his  value  and  his  hire.     .     .     . 

It  is  obvious  that  this  action  has  been  misconceived,  or  at  least  that 
the  plaintiffs  have  misconceived  their  rights,  and  have  instituted  their 
action  in  such  a  way  as  will  not  secure  the  adjustment  of  the  trust  by 
one  suit.  The  trust  is  a  joint  one.  One  of  its  beneficiaries  has  no  sole  or 
exclusive  right  to  any  particular  part  or  subject  of  the  trust.  Each 
beneficiary  has  a  right  in  every  part ;  and  this  is  the  first  instance  which 
has  fallen  under  our  notice  in  which  one  of  several  joint  ccstuis  que 
trust  has  been  permitted  to  single  out  one  part  of  the  tnist  fund,  assert 
an  exclusive  right  to  it,  and  enforce  that  right  by  an  action  in  the 
nature  of  trover.  There  is  nothing  whatever  in  the  record  which  shows 
that  this  proceeding  has  any  sanction  in  the  approbation  of  the  other 
parties  who  are  interested.  The  instructions,  given  at  the  instance  of 
the  defendants,  other  than  Solomon  Welton,  do  not  help  the  matter. 
According  to  their  own  showing  the  plaintiffs  were  not  entitled  to  more 
than  one-fifth  of  the  value  and  hire  of  the  slaves  in  controversy.  This 
fifth  would  be  exclusive  of  the  interest  to  which  they  have  a  right  as 
one  of  the  heirs  of  the  mother  and  sister.  As  the  plaintiffs  have  been 
excluded  from  all  particii)ation  in  a  joint  trust  in  which  they  have  an 


176  TRUSTS.  (Part  2 

interest,  it  is  obvious  that  their  rights  can  only  be  enforced  in  an  action 
in  which  the  whole  trust  fund  is  sought  to  be  adjusted.  The  other 
cestuis  que  trust  being  made  defendants,  the  portions  they  have  re- 
ceived on  the  taking  of  an  account  before  a  commissioner  would  be 
taken  into  consideration,  and  the  entire  property  divided  or  sold  so 
as  to  do  full  justice  between  the  parties.  The  parties  who  are  sui  juris 
may  arrange  matters  by  consent,  but  that  consent,  to  avoid  future 
litigation  should  be  made  apparent  by  the  record. 


WAGNER  V.  WAGNER. 

(Supreme  Court  of  Illirkois,  1910,  244  111.  101,  91  N.  E.  55.) 

This  was  a  bill  filed  by  appellant  for  the  construction  of  the  will, 
and  first  codicil  thereto,  of  his  father,  George  Wagner,  deceased.     .     . 

Farmer,  C.  J.  .  .  .  The  first  codicil,  the  validity  of  which  is 
the  only  question  before  us  for  decision,  recites  that  since  the  making 
of  the  original  will  the  testator  had  converted  most  of  his  estate  into 
personal  property,  and  that  it  was  largely  represented  by  shares  of 
stock  in  the  Rock  Island  Brewing  Company,  to  the  building  up  of 
which  industry  he  had  devoted  many  years  of  his  life.  He  expressed 
the  desire  and  wish  that  as  far  as  possible  his  holdings  in  the  brewing 
company  be  kept  intact  by  his  sons  after  his  death.  He  then  devised 
and  bequeathed  to  his  executors  and  trustees  one-third  of  his  holdings 
in  the  Rock  Island  Brewing  Company  stock  in  trust  for  the  benefit  of 
his  son  Ernst  Wagner,  appellant,  first  deducting  from  the  interest  held 
for  the  benefit  of  George  Wagner  such  portion  of  the  $5000  be- 
queathed by  the  original  will  to  his  children  as  might  be  necessary  to 
pay  the  same.  The  remaining  one-third  of  the  testator's  Rock  Island 
Brewing  Company  stock  was  bequeathed  to  his  son  Robert  A.  Wagner 
absolutely,  to  be  his  forever.  The  codicil  directs  the  trustees  to  pay 
to  the  testator's  sons  Ernst  and  George  Wagner  the  net  income  de- 
rived from  the  Rock  Island  Brewing  Company  stock  in  such  amounts 
and  at  such  times  as  in  their  discretion  they  shall  deem  proper,  and 
they  are  authorized  for  the  support  and  maintenance  of  either  of  said 
sons,  or  if  for  any  other  purpose  they  deem  it  advisable,  to  pay  the  said 
sons  any  sum  greater  than  the  annual  net  income  from  said  stock,  and, 
if  necessary  to  raise   such  additional   sums,  the  trustees  are   given 


Ch.    5)  DUTIES    OF  A    TRUSTEE.  1 


i  i 


authority  to  mortgage,  pledge,  or  sell  any  portion  of  the  stock.  The 
trustees  are  requested  by  the  codicil  to  administer  the  trusts  and  deal 
with  the  sons  Ernst  and  George  as  nearly  as  possibly  as  the  testator 
would  do  if  living,  "keeping  in  mind,  however,  my  expressed  desire  to 
have  the  Wagner  interests  remain  identified  with  the  Rock  Island 
Brewing  Company,  as  far  as  practicable.  The  trusts  hereby  created 
shall    terminate    in    the    discretion    of    the    trustees    or    their    suc- 


cessors." 


We  are  of  opinion,  under  the  authority  of  the  case  above  cited  in 
this  State,  and  the  weight  of  the  current  authority  in  other  States, 
the  trust  created  by  the  codicil  is  a  valid  spendthrift  trust.   We  are  also 
of  opinion  that,  even  if  the  trust  created  by  the  codicil  should  be  held 
invalid  as  a  spendthrift  trust,  it  would  be  valid  as  a  gift  to  the  sons  not 
to  take  effect  in  possession  until  a  future  day,  namely,  the  termination 
of  the  trust.  We  are  aware  that  there  are  respectable  authorities  holding 
the  contrary  and  a  number  of  such  authorities  are  cited  in  appellant's 
brief,  but  such  trusts  are  sustained  in  this  State  and  many  others  when 
not  in  violation  of  the  rule  against  perpetuities.  In  Rhoads  v.  Rhoads, 
43  111.  239,  the  testator  devised  his  estate  to  the  executors  in  trust  for 
his  children,  with  directions  and  authority  to  invest  the  proceeds  of  the 
estate  in  government  bonds,  and  at  the  expiration   of   fifteen  years 
after  his  death  to  distribute  the  estate  with  its  accumulations,  $10,000 
to  his  wife  and  the  remainder  equally  among  his  children.     The  court, 
after  reviewing  the  English  authorities  holding  to  the  contrary  held  that 
the  postponement  of  the  enjoyment  of  the  gift  did  not  invalidate  it 
and  sustained  the  will. 

In  Claflin  v.  Clafiin,  149  Mass.  19,  (20  N.  E.  Rep.  454,)  the  will 
under  consideration  gave  one-third  of  the  residue  of  the  testator's 
personal  estate  to  trustees  for  the  benefit  of  a  son  and  directed  its 
payment  to  him,  $10,000  when  he  reached  the  age  of  twenty-one  years, 
$10,000  when  he  reached  the  age  of  twenty-five  years  and  the  balance 
when  he  reached  the  age  of  thirty  years.  After  he  had  attained  the 
age  of  twenty-one  years  and  had  been  paid  $10,000,  but  before  he  was 
twenty-five  years  oi  age,  he  filed  a  bill  to  compel  the  trustees  to  pay 
him  the  remainder  of  the  trust  fund.  His  contention  was  that  the 
provisions  of  the  will  post])oning  payment  beyond  tlie  time  when  he 
arrived  at  twenty-one  years  of  age  were  void.  The  court  said :  "There 
is  no  doubt  that  his  interest  in  the  trust  fund  is  vested  an<l  al)solutc  and 


178  TRUSTS.  (Part  2 

that  no  other  person  has  any  interest  in  it,  and  the  authority  is  un- 
disputed that  the  provisions  postponing  payment  to  him  until  some  time 
after  he  reaches  the  age  of  twenty-one  years  would  be  treated  as  void 
by  those  courts  which  hold  that  restrictions  against  alienation  of  ab- 
solute interests  in  the  income  of  trust  property  are  void.     There  has, 
indeed,  been  no  decision  of  this  question  in  England  by  the  House  of 
Lords  and  but  one  by  a  chancellor,  but  there  are  several  decisions  to 
this  effect  by  masters  of  the  rolls  and  by  vice-chancellors.    (Citing 
numerous  authorities.)    These  decisions  do  not  proceed  on  the  ground 
that  it  was  the  intention  of  the  testator  that  the  property  should  be 
conveyed  to  the  beneficiary  on  his  reaching  the  age  of  twenty-one 
years,  because  in  each  case  it  was  clear  that  such  was  not  his  intention, 
but  on  the  ground  that  the  direction  to  withhold  the  possession  of  the 
property  from  the  beneficiary  after  he  reached  his  majority  was  in- 
consistent with  the  absolute  rights  of  property  given  him  by  the  will. 
This  court  has  ordered  trust  property  conveyed  by  the  trustee  to  the 
beneficiary  when  there  was  a  dry  trust,  or  when  the  purposes  of  the 
trust  had  been  accomplished,  or  when  no  good  reason  was  shown  why 
the  trust  should  continue  and  all  the  persons  interested  in  it  were  sui 
juris  and  desired  that  it  be  terminated;  but  we  have  found  no  ex- 
pression of  any  opinion  in  our  Reports  that  provisions  requiring  a 
trustee  to  hold  and  manage  the  trust  property  until  the  beneficiary 
reached  an  age  beyond  that  of  twenty-one  years  are  void  if  the  interest 
of  the  beneficiary  is  vested  and  absolute.     ...     It  is  plainly  his 
will  that  neither  the  income  nor  any  part  of  the  principal  should  now 
be  paid  to  the  plaintiff.     It  is  true  that  the  plaintiff's  interest  is  alien- 
able by  him  and  can  be  taken  by  his  creditors  to  pay  his  debts,  but  it 
does  not  follow  because  the  testator  has  not  imposed  all  possible  re- 
strictions that  the  restrictions  which  he  has  imposed  should  not  be 
carried  into  effect.     .     .     .     The  strict  execution  of  the  trust  has  not 
become   impossible.     The   restriction  upon  the  plaintiff's  possession 
and  control  is,  we  think,  one  that  the  testator  had  a  right  to  make. 
Other  provisions  for  the  plaintiff  are  contained  in  the  will  apparently 
sufficient  for  his  support,  and  we  see  no  good  reason  why  the  intention 
of  the  testator  should  not  be  carried  out."    Rhoads.  v.  Rhoads,  supra, 
was  cited  in  support  of  this  decision. 

Gifts  to  trustees  for  the  benefit  of  persons  who  are  objects  of  the 
testator's  bounty  but  postponing  their  enjoyment  in  possession  to  a 


Ch.    5)  DUTIES    OF  A    TRUSTEE.  ]  71) 

future  day,  properly  limited  as  to  time,  have  been  sustained  in  Lunt  v. 
Lunt,  108  111.  307,  Planner  v.  Fellows,  206  id.  136,  Howe  v.  Hodge 
152  id.  252,  Pearson  v.  Hanson  230  id.  610,  and  Armstrong  v.  Barber, 
239  id.  389.  The  principle  of  these  decisions  appears  to  be  that  the 
equitable  title  vests  in  the  beneficiaries  immediately  upon  the  death  of 
the  testator,  that  such  trusts  are  not  in  restraint  of  alienation,  and  that 
the  rule  against  perpetuities  is  not  violated  where  the  time  to  which 
the  enjoyment  in  possession  is  postponed  is  properly  limited  by  the 
will. 

Kales  on  Future  Interests,  in  the  chapter  on  "Restraints  on  Alien- 
ation," discusses  Claflin  v.  Claflin  and  other  cases  above  cited,  and 
reaches  the  conclusion  that  where  Steib  v.  Whitehead,  supra,  is  recog- 
nized as  law,  Claflin  v.  Claflin  and  Lunt  v.  Lunt  will  be  followed,  and 
the  postponed  enjoyment  of  an  equitable  interest,  properly  limited  as 
to  its  duration  in  time,  will  be  held  valid.  In  section  294  the  author 
discusses  some  of  the  reasons  given  by  Prof.  Gray  and  Lord  Langdale 
why  postponed  enjoyment  should  be  held  invalid,  and  says  they  are 
chiefly  that  such  provisions  are  unwise.  Discussing  this  subject  the 
author  says :  "The  worst  charge  that  can  be  made  against  holdijig  these 
postponed  enjoyment  clauses  valid  seems  to  be  that  they  are  either 
harmless,  or  in  an  extreme  case,  viz.,  where  the  cesfui  is  a  spendthrift 
and  insists  on  selling  his  equitable  interest  for  cash,  unwise.  To  de- 
feat the  testator's  intention  wholly  upon  so  trivial  a  ground  ought  not 
to  be  thought  of.  The  attitude  of  the  court  in  Claflin  v.  Claflin  is  in 
favor  of  carrying  out  the  settlor's  intention,  and  the  result  reached  is, 
it  is  submitted,  sound." 

We  are  of  opinion  the  decree  of  the  circuit  court  was  right,  and  the 
judgment  of  the  Appellate  Court  affirming  that  decree  is  afiirmed. 


WYLIE  V.  BUSHNELL. 

(Supreme  Court  of  Illinois,  1917,  277  111.  484,  115  N.  E.  618.) 

Carter,  J.  .  .  .  Of  course,  there  can  be  no  question  as  to  the 
duty  of  a  trustee  to  keep  regular  and  accurate  accounts  during  the 
whole  course  of  his  trusteeship,  from  which  il  can  be  ascertained  what 
property  has  come  into  his  hands,  what  has  passed  out  and  what  re- 


.180  TRUSTS.  (Part  2 

mains  therein,  including  all  receipts  and  disbursements  in  cash,  and  the 
sources  from  which  they  came,  to  whom  paid  and  for  what  purpose 
paid.     (Warner  v.  Mettler,  supra;  Lehman  v.  Rothbarth,  159  111.  270; 
3  Pomeroy's  Eq.  Jur.  — 3d.  ed.  sec.  1063;  2  Perry  on  Trusts,  — 6th 
ed,  — sec.  821 ;  2  Beach  on  Trusts  and  Trustees,  sec.  682.)     And  these 
same  authorities  hold  that  these  accounts  should  be  open  at  all  times 
to  the  inspection,  on  demand,  of  the  beneficiary.    No  special  form,  how- 
ever, of  keeping  books  is  required.  The  question  of  their  competency 
and  sufficiency  must  be  determined  by  the  appearance  and  character  of 
the  accounts,  regard  being  had  to  the  character  of  the  work  and  the 
qualifications  ordinarily  required  in  keeping  books  of  account  as  to 
such  business.     Separate  scraps  of  paper  have  been  admitted  in  evi- 
dence as  books  when  sworn  to  as  such.    A  notched  stick  has  been  held 
to  be  admissible  as  a  book  of  original  entries  where  the  accuracy  of 
the  entries  was  satisfactorily  tested  by  a  comparsion  with  an  account 
made  out  from  notched  sticks  some  time  previous.     Sheets  from  a 
loose-leaf   ledger   system   of   account   containing  the   original   entries 
are,  when  properly  identified,  admissible  in  evidence.     (10  R.   C.  L. 
1178;  Reyburn  v.  Queen  City  Saving  Bank  and  Trust  Co.   171    Fed. 
Rep.  609 ;  Bell  v.  McLeran,  3  Vt.  185 ;  Presley  Co.  v.  Illinois  Central 
Railroad  Co.  120  Minn.  295;  Packing  Co.  v.  Storage  Co.  41  Utah,  92; 
Ricker  v.  Davis,  160  Iowa,  37.)     The  material,  form  or  construction 
of  the  book  offered  in  evidence  as  a  book  of  original  entries  is  un- 
important.    (9  Am.  &  Eng.  Ency.  of  Law,  —2d  ed.  —  sec.  917;  State 
V.  Stephenson,  2  Ann.  Cas.  (Kan.)  841,  and  cases  cited  in  note.)     The 
manner  of  keeping  the  accounts  is  the  important  consideration.     If 
they  are  in  such  form  and  so  preserved  as  to   fairly  show  the  true 
state  of  the  accounts  between  the  parties,  and  can,  under  the  rules 
governing  the  making  of   such  entries,  be  fairly  held  to  be  original 
entries,  that  is  all  that  is  required.    To  hold  that  they  must  be  in  bound 
book  form  in  all  cases  is  giving  more  importance  to  form  than  to  sub- 
stance.   The  vital  question  in  such  cases  is  whether  the  entries  offered 
are  in  the  original  charges,  are  true  and  have  been  made  at  or  about 
the  time  of  the  transaction.    (Graham  v.  Work,  141  N.  W.  Rep.  (Iowa) 
428;  United  Grocery  Co.  v.  Dannelly,  Ann.  Cas.  1914d  (S.  C.)  489,  and 
cases  cited  in  note.)     Books  consisting  of  entries  for  the  time  or  work- 
men are  admissible  in  evidence  though  the  entries  were  made  from 
time-slips  made  out  by  the  workmen  and  approved  b^  the  foreman. 


Cll.    5)  DUTIES    OF  A    TRUSTEE.  181 

(Chisholm  v.  Bcman  Machine  Co.  160  111.  101.)  "Stack  sheets"  whicli 
recorded  the  number  of  tons  of  straw  in  stacks,  made  out  from  scale 
tickets,  are  admissible  as  original  entries.  Chicago  and  Alton  Railroad 
Co.  V.  American  Strawboard  Co.  190  111.  268. 

The  testimony  of  plaintiflf  in  error  as  to  his  method  of  keeping 
accounts  was,  substantially,  that  he  had  a  system  of  keeping  folders  or 
large  envelopes  about  twenty-four  inches  long  by  eighteen  or  twenty 
inches  wide,  and  in  them  he  inserted  and  kept  all  the  papers  as  they 
came  into  his  possession,  each  year's  business  separate  and  kept  in  a 
separate  folder ;  that  from  time  to  time  he  made  distributions,  and  in 
making  computations  for  these  distributions  he  consulted  these  folders 
and  exhibits  and  memoranda  and  papers,  in  connection  with  his  bank 
book;  that  there  were  no  transactions  performed  by  him  as  trustee  or 
executor  for  which  he  did  not  have  vouchers  or  receipts ;  that  while  he 
had  kept  a  system  of  accounts  in  a  bound  book  since  the  filing  of  the 
original  bill  in  this  case  he  had  not  done  so  before,  as  he  considered 
his  system  of  keeping  accounts  in  a  separate  folder  for  each  year's 
transactions  was  fully  as  accurate,  in  connection  with  his  pass-book, 
in  which  he  made  all  deposits  of  money,  that  he  received  as  trustee  or 
as  executor;  that  he  considered,  before  he  began  the  plan  of  keeping 
his  accounts  in  a  bound  book,  that  he  had  a  system  of  keeping  ac- 
counts in  these  folders  in  which  all  the  original  receipts,  vouchers,  cor- 
respondence and  everything  relating  to  the  transaction  of  the  business 
of  that  year  were  kept.     .     .     . 

Nothing  is  called  to  our  attention  in  this  record  to  justify  the  re- 
moval of  plaintiff  in  error  as  trustee.  If  his  final  reports  as  executor 
and  as  trustee,  as  they  now  stand,  are  correct  and  show  with  reason- 
able certainly  that  the  estate  has  not  lost  any  money,  we  do  not  think 
the  fact,  alone,  that  he  has  been  possibly  somewhat  careless  in  his 
method  of  keeping  the  accounts  would  justify  his  removal  as  trustee. 


TILLINGHAvST  v.  MERRILL. 

(New  York  Court  of  Appeals,  1890,  l.'il    N.  Y.  i:i.'i,  45  N.  E.  375.) 

Bartlktt,  J.     'J'he  defendant  Merrill,  while  supervisor  of  the  town 
of  Stockbridge,  in  llio  onnty  of   Madison,  (Upositcd  with  a   firm  of 


182  TRUSTS.  (Part  2 

private  bankers  to  his  credit,  as  supervisor,  certain  of  the  pubHc  moneys 
in  his  hands;  the  banking  firm  afterwards  failed  and  the  money  was 
totally  lost.  This  action  was  brought  by  the  county  treasurer  to  re- 
cover the  money  of  Merrill  and  his  bondsmen,  upon  the  theory  that 
Merrill  on  receiving  the  money  became  the  debtor  of  the  county,  and 
that  the  deposit  of  the  same  was  at  his  own  risk. 

The  trial  judge  found  that  Merrill  acted  in  good  faith  and  without 
negligence  in  all  that  he  did  in  the  premises. 

Under  these  circumstances  the  learned  counsel  for  the  defendants 
has  urged,  with  much  earnestness  and  ability,  that  a  supervisor  rests 
under  the  common-law  liability  whereby  he  was  bound  to  exercise  good 
faith  and  reasonable  diligence  in  the  discharge  of  his  duties,  and  is  not 
responsible  for  any  loss  of  money  which  came  to  his  official  custody, 
occurring  without  fault  on  his  part ;  that  proof  of  the  failure  of  the 
banking  firm,  where  he  had  deposited  the  money  in  good  faith  and 
without  negligence,  is  a  complete  defense  to  :his  action.     .     .     . 

It,  therefore,  comes  to  this,  that  for  forty-five  years  the  case  of 
Supervisors  v.  Dorr  (25  Wend.  440)  has  stood  without  being  directly 
overruled  by  any  case  in  this  state,  and  the  rule  of  the  limited  liability 
of  the  common  law  approved  therein  by  four  of  our  most  distinguished 
judges. 

It  must  be  admitted,  however,  that  the  weight  of  authority  in  the 
Federal  and  State  courts  is  in  favor  of  holding  officials  having  the 
custody  of  public  moneys  liable  for  its  loss,  although  accruing  without 
their  fault  or  negligence.  In  many  of  these  cases  the  decision  turned 
upon  the  construction  of  the  local  statute  of  the  official  bond,  but  others 
squarely  decide  the  question  on  principles  of  public  pohcy. 

In  the  case  at  bar,  the  defendant  Merrill  is  sought  to  be  held  liable 
for  school  moneys  paid  to  him  by  the  county  treasurer  to  disburse  in 
payment  of  the  salaries  of  school  teachers  upon  the  orders  of  the 
trustees.    The  statute  imposing  this  duty  reads  as  follows,  viz : 

"It  is  the  duty  of  every  supervisor, 

"1.  To  disburse  the  school  moneys  in  his  hands  applicable  to  the 
payment  of  teachers'  wages  upon  and  only  upon  the  written  order  of  a 
sole  trustee,  or  a  majority  of  the  trustees,  in  favor  of  qualified  teach- 
ers.    .     .     ."     (2  R.  S.  (8th  ed.)  page  1283,  section  6.) 

By  paragraph  8  of  the  same  section  a  supervisor  is  required  to  pay 
to  his  successor  all  school  moneys  remaining  in  his  hands. 


Ch.    5)  DUTIES    OF  A    TRUSTEE.  183 

In  this  statute  it  will  be  observed  that  there  are  no  explicit  declara- 
tions of  the  legislative  intent,  as  in  the  case  of  town  collectors,  to 
create  a  supervisor  the  debtor  of  the  county  for  public  moneys  in  his 
hands,  and  the  condition  of  the  bond  to  safely  keep,  faithfully  disburse 
and  justly  account  for  the  same  does  not  add  to  the  liability  created 

by  statute. 

As  before  intimated,  we  must  consider  and  decide  this  question  upon 
general  principles  and  in  the  light  of  public  policy. 

In  the  case  of  an  officer  disbursing  the  public  moneys  much  may 
be  said  in  favor  of  limiting  his  liability  where  he  acts  in  good  faith 
and  without  negligence,  and  a  strong  argument  can  be  framed  against 
the  great  injustice  of  compelling  him  to  respond  for  money  stolen  or 
lost  while  he  is  in  the  exercise  of  the  highest  degree  of  care  and  engaged 
in  the  conscientious  discharge  of  duty.  When  considering  this  side  of 
the  case  it  shocks  the  sense  of  justice  that  the  public  official  should 
be  held  to  any  greater  liability  than  the  old  rule  of  the  common  law 
which  exacted  proof  of  misconduct  or  neglect. 

It  is  at  this  point,  however,  that  the  question  of  public  policy  pre- 
sents, and  it  may  well  be  asked  whether  it  is  not  wiser  to  subject  the 
custodian  of  the  public  moneys  to  the  strictest  liability,  rather  than 
open  the  door  for  the  perpetration  of  fraud  in  numberless  ways  im- 
possible of  detection,  thereby  placing  in  jeopardy  the  enormous  amount 
of  the  public  funds  constantly  passing  through  the  hands  of  disbursing 
agents. 

Without  regard  to  decisions  outside  of  our  own  jurisdiction  we 
think  the  weight  of  the  argument,  treating  this  as  an  original  question, 
is  in  favor  of  the  rule  of  strict  liability  which  requires  a  public  official 
to  assume  all  risks  of  loss  and  imposes  upon  him  the  duty  to  account 
as  a  debtor  for  the  funds  in  his  custody. 

We  do  not  wish  to  be  understood  as  establishing  a  rule  of  absolute 
liability  in  any  event.  The  United  States  Supreme  Court,  in  United 
States  V.  Thomas,  (15  Wallace,  337)  held  the  surveyor  of  customs  for 
the  port  of  Nashville,  Tennessee,  and  depositary  of  public  money  at 
that  place,  not  liable  when  prevented  from  responding  by  the  act  of 
God  or  the  public  enemy. 

If  that  state  of  facts  is  hereafter  prcsenlcd  to  this  court  il  will 
doubtless  be  carefully  considered  whether  it  does  not  present  a  proper 
exception  to  the  general  rule. 


184  TRUSTS.  (Part  2 

The  views  we  have  expressed  lead  to  a  final  judgment  against  the 
defendant  Merrill  as  supervisor  of  the  town  of  Stockbridge,  although 
he  is  shown  by  this  record  to  have  discharged  his  official  duties  in  an 
honorable  and  faithful  manner.     .     .     . 


MATTER  OF  HALL. 

(New  York  Court  of  Appeals,  1900,  164  N.  Y.  196,  58  N.  E.  11.) 

CulIvE;n,  J.  The  question  in  the  case  is  as  to  the  liability  of  the 
appellants  as  trustees  for  an  investment  of  twenty-five  thousand  dol- 
lars in  the  debenture  stock  of  "The  Umbrella  Company."  The  authori- 
ty given  the  appellants  by  the  will  is :  "I  hereby  give  my  said  execu- 
tors and  trustees  hereinbefore  named  full  power  to  reinvest  the  pro- 
ceeds of  such  sale  or  other  act  as  aforesaid  in  any  security  real  or 
personal  which  they  may  deem  for  the  benefit  of  my  estate  and  cal- 
culated to  carry  out  the  intention  of  this  my  last  will."  The  testator 
himself  had  been  in  the  umbrella  business,  and  by  the  sixth  clause  of 
his  will  he  directed  that  his  interest  in  the  business  be  closed  on  the 
first  day  of  July  or  the  first  of  January  immediately  following  his  de- 
cease. The  referee  acquitted  the  appellants  of  any  bad  faith,  but  held 
them  liable  on  the  ground  that  the  character  of  the  investment  was  il- 
legal. This  report  was  confirmed  by  the  surrogate  and  the  surrogate's 
decree  unanimously  affirmed  by  the  Appellate  Division,  which,  while 
it  held  that  under  the  will  the  trustees  were  not  limited  to  what  might  be 
called  ordinary  trust  investments,  was  of  opinion  that  the  investment 
was  speculative  and  hazardous,  and  therefore,  improper.  With  this 
view  we  agree.  As  there  was  a  unanimous  affirmance  below,  unless 
we  are  prepared  to  decide  that  good  faith  exonerates  the  trustees 
from  liability,  no  matter  how  speculative,  hazardous  or  unwise  the 
investment  may  have  been,  we  must  afiirm  the  judgment  and  cannot 
look  into  the  evidence  to  see  how  speculative  or  unreasonable  the 
investment  was. 

The  investment  in  the  case  at  bar  was  in  the  preferred  stock  of 
a  corporation  organized  to  conduct  the  manufacture  and  sale  of  um- 
brellas, and  formed  by  the  consolidation  of  several  firms  at  the  time 
engaged  in  that  business.  The  corporation  had  no  real  estate  or  plant. 
The  preferred  or  debenture  stock  was  issued   for  merchandise,  fix- 


Cll.    5)  DUTIES    OF  A    TRUSTEE.  '  185 

tures  and  book  accounts  of  the  firms,  while  the  common  stock  was  is- 
sued for  the  supposed  good  will  of  those  firms.  \Miile  the  money 
was  not  paid  on  an  original  suscription  of  stock,  but  the  stock  was 
bought  from  a  holder,  still  it  was  during  the  very  first  days  of  the 
existence  of  the  company  and  before  experience  had  shown  that  it 
could  achieve  any  success  or  stability.  After  doing  business  for  a 
short  time  the  corporation  failed  and  two-thirds  of  the  investment  of 
twenty-five  thousand  dollars  was  lost.  One  of  the  firms  from  the 
consolidation  of  which  the  corporation  sprang  was  that  of  the  appellant 
Hall,  in  which  firm  the  testator  at  the  time  of  his  decease  was  a  partner. 
As  pointed  out  in  the  opinion  delivered  by  Justice  Bartlett  in  the  Ap- 
pellate Division  the  testator  certainly  never  inended  that  the  money 
he  had  directed  to  be  withdrawn  from  the  business  should  be  invested 
in  the  same  business. 

We  concede  that  under  the  terms  of  the  will  the  trustees  were  given 
a  discretion  as  to  the  character  of  the  investments  they  might  make, 
and  that  they  were  not  limited  to  the  investments  required  by  a  court 
of  equity  in  the  absence  of  any  directions  from  a  testator.  The  trusts 
of  this  will  are  to  provide  the  testator's  children  with  incomes  during 
their  lives,  and  on  their  deaths  the  principal  it  to  go  to  their  issue. 
The  very  object  of  the  creation  of  trust,  was,  therefore,  the  security 
of  the  principal,  otherwise  the  testator  might  better  have  given  the 
property  outright  to  his  children  who  were  the  primary  objects  of  his 
bounty.  The  range  of  so-called  "legal  securities"  for  the  investment 
of  trust  funds  is  so  narrow  in  this  state  that  a  testator  may  well  be 
disposed  to  grant  to  his  executors  or  trustees  greater  liberty  in  placing 
the  funds  of  the  estate.  Rut  such  a  discretion  in  the  absence  of  words 
in  the  will  giving  greater  authority  should  not  be  held  to  authorize 
investment  of  the  fund  in  new  speculative  or  hazardous  ventures. 
If  the  trustees  had  invested  in  the  stock  of  a  railroad,  manufacturing, 
banking,  or  even  business  corporation,  which,  by  its  successful  conduct 
for  a  long  period  of  time,  had  achieved  a  standing  in  commercial 
circles  and  acquired  the  confidence  of  investors,  their  conduct  would 
have  been  justified,  although  the  investment  prove(l  unfortunate.  lUit 
the  distinction  between  such  an  investment  and  the  one  before  us 
is  very  marked.  Surely  there  is  a  mean  between  a  government  bond 
and  the  stock  of  an  Alaska  gold  mine,  and  the  fact  that  a  trustee  is 
not  limited  to  the  one  does  not  authorize  him  to  invest  in  tlic  other. 


IS6  TETJSTS.  (Part  2 

In  our  judgment  the  authority  given  to  the  appellants  by  this  will 
is  quite  similar  to  that  vested  in  trustees  in  the  New  England  states, 
where  the  strict  English  rule  as  to  the  investment  of  trust  securities 
which  prevails  in  this  state  does  not  obtain.     In  Mattocks  v.  Moulton 
(84  Maine,  545)  it  was  held  that  in  the  investment  of  trust  funds  the 
trustee  must  exercise   sound   discretion   as   well   as   good   faith   and 
honest  judgment.    The  court  said:    "It  will  be  generally  conceded  that 
a  mere  business  chance  or  prospect,  however  promising,  is  not  a  proper 
place  for  trust  funds.    While,  of  course,  all  investments,  however  care- 
fully made,  are  more  or  less  liable  to  depreciate  and  become  worthless, 
experience  has  shown  that  certain  classes  of  investments  are  peculiar- 
ly liable  to  such  depreciation  and  loss.     These,  of  course,  would  be 
avoided  by  every  prudent  man  who  is  investing  his  own  money  with  a 
view  to  permanency  and  security  rather  than  the  chance  of   profit. 
A  trustee  should,  therefore,  avoid  them,   even  though  he   sincerely 
believes  a  particular  investment  of  that  class  to  be  safe  as  well  as 
profitable."  In  Dickinson,  appellant   (152  Mass.   184),  a  trustee  was 
held  liable  for  an  investment  in  Union  Pacific  railroad  stock.     It  was 
there  said:   "Our  cases,   however,   show  that  trustees   in  this  com- 
monwealth are  permitted  to  invest  portions  of  trust  funds  in  dividend 
paying  stocks  and  interest-bearing  bonds  of  private  business  corpora- 
tions, when  the  corporations  have  acquired,  by  reason  of  the  amount  of 
their  property,  and  the  prudent   management  of   their   affairs,   such 
a  reputation  that  cautious  and  intelligent  persons  commonly  invest 
their  own  money  in  such  stocks  and  bonds  as  permanent  investments." 
Several  of  the  equitable  life  tenants  consented  to  the  investment 
made  by  the  trustees  and  are  estopped  from  questioning  its  propriety. 
The  courts  below  have  so  held  and  have  authorized  the  trustees  to 
retain  the  shares  of  such  life  tenants  in  the  income  produced  by  the 
sum  which  the  appellants  have  been  directed  to  pay  into  the  fund  on 
account  of  the  loss  on  the  securities.     The  decree,  however,  does  not 
go  far  enough  in  this  respect,  for  in  certain  contingencies  these  life 
tenants  may  be  entitled  to  share  in  the  principal  of  the  fund.     The 
decree  should  be  modified  so  as  to  provide  that  in  case  any  beneficiary 
who  has  assented  to  the  investment  in  the  umbrella  stock  should  be- 
come entitled  to  any  part  of  the  principal  of  the  fund  paid  by  the 
trustees,  then  the  trustees  may  retain  such  part,  and  as  so  modifiea 
affirmed,  without  costs  of  this  appeal  to  any  party. 


Ch.    5)  DUTIES     OF    A     TRUSTEE.  1S7 


McCULLOUGH'S  EXECUTORS  v.  McCULLOUGH. 

(New  Jersey  Court  of  Chancery,  1888,  44  N.  J.  Eq.  313,  14  Atl.  G42.) 

On  bill  for  instructions  to  trustees.     ... 

The  Chancellor  ....     They  now  ask  to  be  instructed : 

First,   whether   the   several   trust   funds   must   be   kept    separately 

invested,  and 

Second,  whether  the  investments  may  be  upon  mortgages  on  lands 

in  Minnesota.     ' 

It  appears  by  the  statement  of  counsel  that  one  of  the  cestuis  que 
trustent  resides  in  this  state,  and  that  all  of  them  reside  in  states 
distant  from  Minnesota. 

The  first  inquiry  must,  without  hesitation,  be  answered  in  the 
affirmative.  Each  fund  is  a  distinct  trust  for  the  benefit  of  distinct 
cestuis  que  trustent. 

It  must  be  kept  separate  from  all  other  funds,  so  that  every  step 
in  its  management  may  be  distinctly  traceable  in  the  accounts  of  the 
trustees  and  in  the  investments  they  make.  The  trust  must  not, 
through  investment,  be  complicated  with  the  rights  of  strangers,  or 
required  to  share  in  the  losses  of  other  funds.  1  Perry  on  Trusts, 
§  463;  Fowler  v.  Colt,  10  C.  E.  Gr.  202;  S.  C.  12  C.  E.  Gr.  492. 

I  am  satisfied  that  the  second  question  should  be  answered  in  the 

negative. 

The  courts  of  the  state,  within  which  a  trustee  must  account,  should 
hesitate  to  sanction  an  investment  upon  the  security  of  lands  that  are 
not  within  their  own  jurisdiction,  not  merely  because,  in  such  case, 
they  will  be  left  without  the  proper  facilities  to  obtain  accurate  and 
satisfactory  information  concerning  the  investment,  but  also  because 
they  will  lose  direct  control  of  the  fund  itself. 

Where  the  trustee  is  without  the  jurisdiction,  it  becomes  more 
important  that  the  fund  should  be  within  it,  for  otherwise  the  courts 
may  find  themselves  stripped,  not  only  of  power  to  properly  investi- 
gate the  condition  of  the  trust,  but   also  of  power  to  enforce  their 

decrees. 

Again,  both  the  trustee  and  the  cestui  que  trust  arc  interested 
in  the  proper  investment  of  the  trust  fund,  the  one  because  of  the 


188  TRUSTS.  (Part  2 

duty  and  responsibility  which  rest  upon  him  and  the  confidence  that 
is  reposed  in  him,  and  the  other  because  of  the  beneficial  value  that 
proper  security  is  to  him. 

In  subserving  these  respective  interests  it  is  incumbent  upon  both 
the  trustee  and  the  ceshii  que  trust  to  constantly  watch  the  investment 
of  the  trust  fund  and  be  on  the  alert  to  protect  it  from  harm. 

To  afford  opportunity  for  this  watchful  care  the  funds  should  be 
invested  within  the  convenient  reach  of  both  of  these  parties. 

Judge  Finch,  of  New  York  court  of  x-\ppeals,  in  the  case  of  Ormiston 
V.  Olcott,  84  N.  Y.  339,  in  commenting  upon  the  mischief  of  permitting 
a  trustee  to  invest  trust  funds  in  another  state,  says:  "It  would 
be  unjust  to  the  beneficiaries  to  compel  them  to  accept  such  invest- 
ments, and  tend  to  increase  the  risk  of  ultimate  loss.  The  proper  and 
prudent  knowledge  of  values  would  become  more  difficult  and  un- 
certain ;  watchfulness  and  personal  care  would  in  the  main  be  replaced 
by  confidence  in  distant  agents,  and  legal  remedies  would  have  to  be 
sought  under  the  disadvantage  of  distance  and  before  different  and 
unfamiliar  tribunals." 

In  the  case  under  consideration  the  trustees  reside  and  have  the 
trust  funds  in  a  state  distant  from  the  residences  of  their  cestuis  que 
trustent.    The  continuance  of  such  a  condition  of  affairs  must  be  con- 
demned.    If  it  remains,  the  happening  of  circumstances  may  readily 
be  imagined  that  may  not  only  put  the  beneficiaries  of  the  trust  to 
great  annoyance,  disadvantage  and  expense,  but  also  render  our  courts 
poweriess  to  do  them  material  service.    I  cannot  overlook  the  fact  that 
among  the  numerous   and   small   mortgages   that   are   held   by   these 
trustees  some  may  fail,  and  thereupon  questions  may  arise  whether  the 
investments  in  them  were  made  with  requisite  care  and  prudence,  and 
necessitate  inquiry  into  values   and  other  particulars  in  the  locality 
of  the  lands  mortgaged,  in  which  inquiry  the  trustees  would  have  the 
manifest  advantage,  in  a  contest  with  their  distant  cestuis  que  trustent, 
of  being  able  to  produce  evidence  from  familiar  surroundings,  at  little 
expense,  while  their  opponents  would  be  obliged  to  seek  for  evidence 
among  strangers,  in  a  strange  community,  and  possibly  at  an  expense 
not  at  all  commensurate  with  the  injury  for  which  they  may  desire 
redress.     I  do  not  think  that  the  high  rates  of  interest  that  are  ob- 
tainable in  Minnesota,  or  the  convenience  of  the  trustees,  should  in- 
fluence me  to  disregard  the  dangers  to  which  the  beneficiaries  may  be 


Cll.    5)  DUTIES    OF  A    TRUSTEE.  189 

subjected.  The  fact  that  the  testator  made  such  investments  will  not 
justify  the  trustees  in  continuing  them.  His  position  as  owner  of  the 
funds  in  his  own  right,  was  vastly  different  from  the  position  of  con- 
fidence and  responsibility  which  the  trustees  occupy.  The  will  gives 
no  express  authority  for  the  investments  as  they  are  made,  and  I  fail 
to  find  such  authority,  in  it.  by  necessary  or  reasonable  implication. 
The  trust  funds  should  be  brought  within  this  State,  and  invested 
here  in  securities  approved  by  this  court. 


THAYER  V.  DEWEY. 

(Supreme  Court  of  Massachusetts,  1904,  185  Mass.  68,  69  N.  E.  1074.) 

Knowltox,  C.  J.  The  trustees  in  this  case  invested  more  than 
$200,000  in  the  purchase  of  real  estate  in  Chicago,  and  the  question 
is  whether  this  investment  shall  be  allowed  in  their  account. 

The  rule  in  this  Commonwealth  governing  trustees  in  making  in- 
vestments has  often  been  stated  and  is  well  established.  They  are  bound 
to  act  in  good  faith  and  to  exercise  a  sound  discretion.  Harvard  Col- 
lege V.  Amory,  9  Pick.  446;-  Amory  v.  Green,  13  Allen,  413;  Brown  v. 
French,  125  Mass.  410;  Bowker  v.  Pierce,  130  Mass.  262;  Hunt,  ap- 
pellant, 141  Mass.  515;  Dickinson,  appellant,  152  Mass.  184;  Pine  v. 
White,  175  Mass.  585;  Green  v.  Crapo,  181   Mass.  55. 

The  appellant  contends  that  an  investment  in  real  estate  outside 
of  the  Commonwealth  should  not  be  sustained  unless,  first,  the  trust 
funds  are  so  invested  when  they  come  into  custody  of  the  trustee,  in 
which  case  he  may  be  justified  in  retaining  the  investment;  second,  the 
will  authorizes  or  instructs  the  trustee  to  make  such  an  investment ; 
third,  in  certain  rare  and  exceptional  cases  when  such  an  investment 
may  be  necessary  or  rcfiuired  to  protect  or  secure  other  investments 
or  interests  involved  in  the  trust  fund.  The  rule  in  some  other  States 
is  substantially  in  accordance  with  this  contention.  Ormiston  v.  Olcott. 
84  N.  Y.  339;' Rush's  estate,  12  Pc-nn.  St.  375.  378;  Kx  parte  Copcland. 
Rice  Eq.  (S.  C.)  69;  McCullough  v.  McCullough.  17  Stew.  (N.  J.) 
313.  But  in  these  Slates  trustees  arc  limited  more  strictly  in  their 
power  to  make  investments  than  they  are  limiled  by  our  rule  in  Massa- 
chusetts.    In  Amory  v.  Green,  13  All.n.  413.  trustees  were  aiUhoriz- 


190  TRUSTS.  (Part  2 

ed  to  invest  in  real  estate  for  a  homestead  for  the  cestui  que  trust  in 
another  State,  because  the  authority  given  by  the  will  was  broad 
enough  to  justify  it.  In  many  other  cases  investments  in  stock  and 
bonds  of  great  corporations  organized  and  doing  business  in  other 
States  have  been  approved,  where  it  appeared  that  the  investment 
was  made  in  good  faith,  and  in  the  exercise  of  a  sound  discretion,  ac- 
cording to  the  standard  of  other  men  of  prudence,  discretion  and  in- 
telligence in  the  management  of  their  own  affairs  in  regard  to  the 
permanent  disposition  of  their  funds  with  a  view  to  probable  income 
as  well  as  the  probable  safety  of  the  capital  to  be  invested.  In  these 
cases  the  stocks  and  bonds  were  such  as  are  often  sold,  and  have  a 
recognized  market  value,  away  from  the  place  where  the  corporation 
is  established  or  where  its  property  is  located. 

There  is  a  grave  objection  to  the  investment  of  a  trust  fund  in  the 
purchase  of  real  estate  in  a  foreign  State,  where  the  property  is  be- 
yond the  jurisdiction  of  our  courts  and  is  subject  to  laws  different 
from  our  own.  On  this  account  is  would  not  be  within  the  exercise 
of  a  sound  discretion  to  make  such  an  investment  without  some  good 
reason  to  justify  the  choice  of  it.  Ordinarily  it  is  very  desirable  that 
investments  which  have  a  local  character,  like  the  ownership  of  real 
estate,  should  be  within  the  jurisdiction  of  the  court  that  controls  the 
trust.  But  in  this  Commonwealth  there  is  no  arbitrary,  universal 
rule  that  an  investment  will  not  be  approved  if  it  consists  of  fixed 
property  in  another  State. 

In  the  present  case  it  is  said  that  the  trust  fund  is  very  large, 
and  that  this  is  but  a  very  small  part  of  the  whole,  and  it  is  expressly 
found  that  the  investment  "will  not  cause  any  loss  to  the  estate,  and 
that  the  trustees  acted  in  good  faith  and  with  sound  discretion." 
The  only  objection  made  at  the  hearing  was  that  the  trustees  had  no 
legal  right  to  make  an  investment  in  real  estate  located  outside  of  the 
Commonwealth.  The  appellant's  contention,  if  sustained,  would  call 
for  the  establishment  of  an  arbitrary  rule  which  is  inconsistent  with 
the  general  rule  as  to  trustees'  investments  heretofore  existing  in  this 
Commonwealth. 

Decree  of  Probate  Court  afifirmed. 


Cll.    5)  DUTIES    OF  A    TRUSTEE.  191 


IN  RE  MULHOLLAND'S   ESTATE. 

(Supreme  Court  of  Pennsylvania,  1896,  175  Pa.  411;  34  Atl.  735.) 

Godfrey  Fisher  was  appointed  guardian  of  Nancy  Mulholland, 
minor  child  of  Rudolph  Mulholland,  by  the  orphans'  court  of  Center 
county,  January  29,  1885.  The  proceeds  of  the  estate  were  paid  in 
to  the  guardian,  in  various  sums,  and  at  diflferent  times  between  1885 
and  1892.  Of  the  amounts  so  paid  in,  the  guardian  used  about  $2,200 
in  the  purchase  of  real  estate  on  his  own  account.  He  loaned  $3,700 
to  his  son,  and  $330  to  another  person.  The  balance  was  deposited  by 
the  guardian  in  bank  in  his  own  name.  He  had  no  other  funds  in 
the  bank.  On  July  27,  1894,  the  guardian  filed  his  account,  charging 
himself  with  the  several  sums  received  for  his  ward,  and  with  interest 
thereon  at  the  rate  of  3  per  cent.,  which  was  the  amount  allowed  him 
by  the  bank  on  his  deposit.  Exceptions  were  filed  on  behalf  of  the 
ward,  claiming  that  the  guardian  had  failed  to  charge  himself  w\,th 
proper  interest.  The  account  was  referred  to  an  auditor,  who  reported, 
charging  the  guardian  with  legal  interest  on  the  whole  amount.  The 
guardian  excepted  to  the  report  of  the  auditor,  and.  his  exceptions 
being  overruled  by  the  orphans'  court,  the  guardian  appealed. 

The  following  is  the  opinion  of  the  court  (Archibald.  J.)  as  to  the 
material  issue  in  the  case. 

"The  facts  in  this  case  are  not  disputed.  They  all  appear  either 
by  admitted  vounchers,  or  have  been  drawn  out  of  the  accountant's 
own  mouth  upon  the  witness  stand.  They  plainly  show  that  he  failed 
to  exercise  the  care  demanded  in  the  management  of  a  trust  estate.  He 
not  only  did  not  invest  the  moneys  he  received  in  approved  real-estate 
mortgages,  or  other  securities  which  the  law  recognizes,  but  he  did 
not  even  seek  an  investment  of  any  such  kind.  The  only  loans  made 
were  a  small  one  to  a  man  named  Brown,  and  another  to  this  the 
accountant's  son,  to  i)ut  into  Western  land,  both  of  which  ended  dis- 
astrously. He  also  used  over  $2000  to  buy  land  for  himself,  and  de- 
posited the  rest  in  the  bank  in  his  own  name, — a  small  portion  in  the 
First  National  Bank  of  Clearfield,  which  failed,  and  the  remainder 
with  the  private  banking  firm  of  Cochran,  Payne  &  McCormick,  of 
Williamsport.    While  these  deposits,  strictly  sjjeaking.  were  not  min- 


192  TRUSTS.  (Part  2 

gled  with  his  own  money,  yet  they  were  made  in  his  individual  name, 
and  stood,  in  consequence,  at  the  risk  of  his  personal  credit.  It  cannot 
be  considered,  therefore,  that  they  were  really  kept  distinct  and 
separate  from  his  own  private  funds  as  the  law  requires.  The  truth  is 
that  while  the  accountant,  in  his  own  mind,  may  have  individuated  the 
estate  of  his  ward,  according  to  all  outward  observances  he  used  and 
disposed  of  it  pretty  much  as  his  own.  Under  the  circumstances,  he 
is  properly  held,  not  only  for  the  bad  investment — if  investment  it  can 
be  called — or  that  part  of  it  which  has  been  lost,  bvit  also  for  interest 
upon  the  whole  of  it,  the  same  as  though  he  had  derived  a  direct  bene- 
fit from  its  use.  He  practically  has  had  the  use  of  it,  and  must  account 
accordingly.  The  case  is  substantially  within  the  ruhng  in  Copen- 
hefifer's  Appeal,  3  Penny.  243,  and  other  kindred  cases.  Both  with 
regard  to  the  general  charges  of  interest,  and  the  reduction  of  the 
accountant's  compensation.  I  see  no  occasion  to  disturb  the  findings 
of  the  auditor."     .     .     . 

Pe:r  Curiam.  This  record  discloses  no  error  of  which  appellant 
has  any  just  reason  to  complain.  On  the  contrary,  he  appears  to  have 
been  considerately  and  leniently  dealt  with  by  the  learned  auditor 
and  the  court  below.  His  mismanagement  of  the  trust^using  his 
ward's  funds  in  his  own  business,  and  so  mingling  the  same  with  his 
own  that  it  was  impossible  to  trace  investments,  etc. —  was  such  as  to 
require  the  surcharges  of  interest,  etc.,  and  would  also  have  justified 
the  rejection  of  his  entire  claim  for  commissions;  but  as  to  that  "the 
appellee  does  not  complain,"  and  hence  the  question  is  not  properly 
before  us.  There  is  nothing  in  either  of  the  specifications  of  error  that 
requires  special  notice.  The  questions  involved  were  sufficiently  con- 
sidered by  the  court  below.     .     .     . 


MITCHELL'S  ADM'R.  v.  TROTTER. 

(Virginia  Court  of  Appeals,  1850,  7  Gratt.  136.) 

This  was  a  suit  in  equity  in  the  Circuit  Court  of  Brunswick  county, 
by  Thomas  R.  Trotter  and  wife  against  Benjamin  Wilkinson,  admhi- 
istrator  of  Clement  Mitchell  deceased,  the  father  of  the  female  plain- 
tiff, for  a  settlement  of  his  administration  account,  and  for  a  decree 


Ch.    5)  DLTTIES    OF  A    TRUSTEE.  1<);1 

for  the  amount  which  might  be  ascertained  to  he  due  to  the  plain- 
tiff.    .     .     . 

Allex,  J.  The  Court  is  of  opinion,  that  the  evidence  in  the  record 
does  not  estabHsh  such  a  degree  of  neghgence  on  the  pari  of  the  ap- 
pellant, as  to  subject  him  to  a  personal  responsibility  for  his  failure 
to  institute  legal  proceedings  against  Robinson  Ezell  for  the  debt  he, 
as  administrator,  had  been  compelled  to  pay  on  account  of  his  intestate 
having  been  stirety  for  said  Ezell ;  that  on  the  contrary,  ilie  testimony 
shews  that  Ezell  was  unable  to  pay  the  debt,  and  that  with  a  knowledge 
of  the  facts  established  by  the  evidence,  the  administrator  was  not 
required,  in  the  prudent  discharge  of  his  duty,  to  incur  the  costs  of 
a  suit  against  Ezell.  And  as  the  commissioner,  by  his  special  report  of 
the  payment  and  all  the  testimony  bearing  on  it,  submitted  the  c[ues- 
tion  directly  to  the  Court,  whether  the  claim  was  properly  disallowed, 
the  Court,  instead  of  a  partial  correction  of  the  report  in  relation  to 
said  claim,  should  have  allowed  the  administrator  credit  for  the 
amount  thereof.     .     .     . 


WATER  MAX  v.  ALUICN. 

(Supreme  Court  of  Illinois,  1(4  111.  90.  32  N.  E.  972.) 

Wilkin,  J.  .  .  .  That  a  loss  to  the  complainants  has  been 
sustained  by  reason  of  the  failure  of  appellees  to  collect  the  whol'e 
amount  of  these  notes  is  not  denied.  That  they  might  have  been  collected 
by  the  use  of  ordinary  business  management,  and  diligence,  or  secured, 
is  clearly  established  by  the  evidence.  W'e  think  it  is  ec|ually  clear  that 
the  trustees  knew  that  said  parties  were  heavily  indebted,  and  liable 
to  fail  long  before  any  effort  was  made  by  tlieni  to  secure,  or  collect 
said  indebtedness.  The  only  finding  of  the  court  below  on  the  tacts 
is  to  that  effect.  W'hile  Special  Master  Loomis.  by  his  report,  excuses 
the  conduct  of  the  tru.stees,  he  does  nf)t  do  so  on  the  ground  that  they 
were  not  negligent,  but  rather  upon  the  thec.ry,  that,  from  tin-  re- 
lations existing  between  the  testator,  and  the  Marsh's,  it  is  fair  to 
presume  that  he,  if  living,  would  have  used  no  more  can-  and  diligence 
in  enforcing  those  claims  than  did  ap])elk',('s.  It  ni-ed  scared)  be 
suggested  that  no  such   test   can   properly   he   api)hr(l   to   ihi'  coi'duct 


104  TRUSTS.  (Part  2 

of  trustees.  There  may  be  abundant  reason  for  believing  that  Mr. 
Waterman,  though  a  careful  business  man,  would  much  rather  have 
lost  the  indebtedness  than  to  have  pressed  the  collection  of  it,  but 
that  furnishes  no  excuse  for  these  trustees  to  neglect  or  fail  to  use 
all  reasonable  diligence  in  the  matter.  Mr.  Waterman  might  do  with 
his  own  as  he  pleased,  but  the  duties  of  these  appellees  are  fixed  by 
the  law,  and  if  they  have  violated  those  duties  they  are  personally 
liable.     ... 


BRYANT  V.  CRAIG. 

(Supreme   Court   of  Alabama,   1847,   12   Ala.   354.) 

Ormond,  J.  The  manner  in  which  the  account  of  the  guardian  was 
stated,  presents  the  question,  whether  a  guardian  who  retains  his 
ward's  money  in  his  hands,  without  investing  it,  is  subject  to  have  an- 
nual rests  made  in  his  account,  and  charged  compound  interest. 

The  general  rule  applicable  to  all  trustees  is,  that  they  should 
not  be  permitted  to  make  a  profit  for  themselves,  by  the  employment 
of  the  funds  in  their  hands,  and  if  it  be  invested  in  trade,  or  otherwise 
profitably  employed,  the  cestui  que  trust  may  insist  on  the  profit  so 
made,  if  he  elect  to  do  so.  No  question  of  that  kind  is  made  here,  as 
it  does  not  appear  how,  or  in  what  manner  these  funds  were  employed 
by  the  guardian. 

But  although  a  trustee  may  not  have  invested  the  trust  funds  in  such 
a  manner,  that  the  profits  made  by  their  employment  can  be  ascer- 
tained, yet  if  he  sufl"ers  the  fund  to  be  idle,  when  the  terms  of  the 
trust,  or  the  general  law,  requires  it  should  be  invested,  so  as  to 
yield  a  profit,  he  is  chargeable  with  simple  interest ;  or  if  he  is 
o-uilty  of  such  gross  neglect  in  the  execution  of  the  trust,  as  to  be 
evidence  of  a  corrupt  intention,  he  may  be  charged  with  compound 
interest.  These  principles  are  fully  illustrated  in  many  cases,  of 
which  the  following  may  be  cited  as  examples:  Foster  v.  Foster,  2 
Bro.  C.  C.  616;  Raphael  v.  Boehm,  11  Vesey,  92;  Pocock  v.  Red- 
ington.  5  Id.  794;  Dornford  v.  Dornford.  12  Id.  127;  Schieffelin  v. 
Stewart,  1  Johns.  Ch.  620  (7  Am.  Dec.  507)  ;  Clarkson  v.  De  Peyster, 
1  Hopk.  Ch.  424. 


Cll.    5)  DUTIES    OF   A     iT.USTEE.  195 

As  the  guardian  could  not  be  guilty  of  negligence,  in  not  investing 
the  money  of  his  ward,  unless  the  law  requires  him  to  invest  it,  the 
first  question  which  naturally  presents  itself  is,  what  is  the  law  upon 
the  subject?  Our  statute  law,  though  very  full  and  particular,  as  to 
the  mode  of  appointing  guardians,  making  settlements  with  them,  &c., 
is  silent  upon  this  particular.  It  results  however,  necessarily,  from 
the  nature  of  the  trust,  that  the  estate  of  the  ward  should  be  profitably 
employed,  as  otherwise  it  would  be  consumed,  and  where  it  consists 
of  money,  this  could  only  be  by  lending  it  out  on  good  security.  In 
England,  a  trustee  whose  duty  it  is  to  invest  the  money  in  his  hands, 
is  exonerated  from  liability,  by  investing  it  in  the  public  funds,  which, 
as  the  court  would  direct  to  be  done  on  application,  it  will  sanction 
if  done  without  such  application,  and  he  will  be  exonerated  from 
liability,  though  the  stock  should  fall  in  value.  Franklin  v.  Frith,  2 
Bro.  C.  C.  433;  Holmes  v.  Bring,  2  Cox,  1.  In  Smith  v.  Smith.  4 
Johns.  Ch.  445,  Chancellor  Kent  seems  to  think,  that  personal  security 
is  insufficient,  and  that  a  trustee  lending  money,  must  require  adequate 
real  security,  or  resort  to  the  pubhc  funds.  Here  are  no  public  funds 
in  which  money  may  be  safely  and  securely  invested.  At  least  there 
has  been  none  until  very  recently,  and  it  is  not  probable  we  shall  be 
long  burthened  with  a  public  debt. 

Personal  security,  no  matter  how  good  it  was  deemed  at  the  time, 
would  not  be  sufficient ;  and  it  may  be  added,  that  with  us,  real  prop- 
erty is  subject  to  such  fluctuations,  that  it  is  by  no  means  an  adequate 
security;  and  it  may  very  well  be  doubted,  whether  he  would  not 
be  personally  liable,  for  any  loan  he  may  have  made  of  the  money, 
without  the  sanction  of  the  court,  no  matter  what  security  he  may 
have  taken.  Our  statute  appears  to  have  intended  to  place  this  whole 
matter  under  the  direction  of  the  orphans'  court,  as  it  invests  that 
court  with  power  to  direct  a  sale  of  the  land  of  the  ward,  if  the  person- 
al estate,  and  the  rents  and  profits  of  the  realty,  were  insufficient  for 
•his  support ;  and  it  appears  to  follow  necessarily,  that  the  same  court 
would  have  the  power  to  direct  in  what  manner  the  money  of  the  ward 
should  be  invested.  It  was  the  duty  of  the  guardian,  if  he  desired 
to  exonerate  himself  from  the  payment  of  interest,  to  apply  to  the 
court  for  direction  in  the  investment  of  the  funds,  who  would  have 
examined  the  proposed  security,  and  whose  approbation  would  have 
exonerated  the  guardian  from  liability,  if  afterwards  lost  without  his 
neglect. 


196  TRUSTS.  (Part  2 

The  guardian  having  omitted  to  make  this  apphcation,  must  pay 
interest  on  the  funds  in  his  hands,  whether  they  have  been  profitable 
to  him  or  not,  and  we  next  proceed  to  inquire,  whether  this  is  such 
gross  neghgence,  as  will  authorize  rests  to  be  made  in  the  account,  for 
the  purpose  of  charging  him  with  compound  interest. 

The  general  rule  undoubtedly  is,  that  where  it  is  the  duty  of  the 
trustee  to  invest  the  trust  funds,  and  he  fails  to  do  so,  he  is  chargeable 
only  with  simple  interest.  See  the  cases  already  cited,  and  Newton  v. 
Bennett,  1  Bro.  C.  C,  in  the  note  to  which,  Mr.  Eden  has  collected  all 
the  authorities,  establishing  conclusively,  that  for  neglect  merely, 
the  practice  of  the  court  is,  to  charge  interest  at  the  rate  of  four  per 
centum.  Where  the  trustee  is  guilty  of  fraud  or  corruption,  as  where, 
in  open  violation  of  the  trust,  he  applies  the  funds  to  his  own  use  in 
trade ;  converts  the  property,  or  securities,  as  for  example,  stock,  into 
money,  and  applies  it  to  his  own  use;  or  otherwise  corruptly  and 
fraudulently  abuses  the  trust  reposed  in  him;  he  may  be  charged 
with  compound  interest.     .     .     . 

The  charge  of  compound  interest,  seems  to  be  adopted  as  a  punish- 
ment in  those  cases,  where  from  the  gross  mismanagement  of  the 
trustee,  it  is  difficult,  if  not  impossible  to  ascertain,  what  the  income 
of  the  estate  would  otherwise  have  been;  but  it  may  be  safely  as- 
serted, that  no  estate  in  money,  under  the  most  judicious  manage- 
ment, can  be  made  to  yield  compound  interest,  at  the  rate  of  eight  per 
centum.  If  it  had  been  annually  invested,  under  the  direction  of  the 
court,  some  delay  must  have  been  encountered,  in  finding  a  person 
desirous  to  borrow,  and  able  to  give  the  necessary  security.  It  is  not 
reasonable  to  presume,  that  where  so  lent,  it  would  always  be  punctual- 
ly paid,  so  as  to  be  immediately  re-invested;  nor  can  it  be  doubted, 
that  it  would  frequently  be  necessary  to  coerce  payment  by  suit  and 
that  after  every  precaution  had  been  taken,  both  principal  and  interest 
would  occasionally  be  lost.  The  charge  of  compound  interest,  there- 
fore, is  unjust,  because  the  estate  could  not  have  yielded  that  by  any- 
prudent  management  in  the  hands  of  the  owner,  had  he  been  of  age  to 
manage  it  himself. 

The  mere  omission  of  the  guardian,  to  apply  to  the  court  for 
authority  to  invest  it,  and  the  failure  to  make  annual  settlements,  are 
not  evidence  of  fraud,  but  establish  negligence  merely,  and  the  court 
therefore  acted  correctly  in  refusing  to  allow  compound  interest.  .  .  . 


Cll.    5)  DUTIES     OF    A     TRUSTEE.  197 


WHITTLESEY  v.  HUGHES. 

(Supreme  Court  of  Missouri,  186G,  39    Mo.,  13.) 

Fagg^  J.  .  .  .  It  is  insisted  by  the  plaintiti'  in  error  that  Wil- 
Hams  could  legally  convey  the  estate  and  transfer  the  power  which 
had  been  conferred  upon  him  by  the  deed  of  trust.  The  habendum 
was  "to  said  trustees  and  the  survivor  of  them,  and  to  the  heirs, 
executors,  administrators  and  assigns  of  said  survivor,  in  trust," 
&c.  Much  stress  is  laid  upon  the  word  assigns,  and  the  case  of  Titby 
V.  Wolstenholme,  7  Beav.  425,  is  cited  as  authority  to  show  that  a 
devise  made  by  the  surviving  trustee  of  a  trust  estate  was  valid,  no 
express  power  of  appointing  new  trustees  being  given  by  the  will. 
From  this  decision  the  argument  is  made  in  this  case  that  the  power 
to  convey  by  deed,  and  to  make  an  appointment  of  a  new  trustee,  must 
necessarily  follow.  Let  us  see  the  reasoning  in  the  case  referred  to. 
The  Master  of  the  Rolls  said,  "we  have  in  this  will  expressions  which 
clearly  show  that  the  testator  intended  the  trusts  to  be  performed  by 
the  'assigns'  of  the  surviving  trustee ;  and  in  construing  the  will,  we 
must,  if  practicable,  ascribe  a  rational  and  legal  efifect  to  every  word 
which  it  contains.  IVe  cannot  consistently  zvith  the  rules  of  this  court 
consider  the  ivord  'assigns'  as  meaning  the  person  ivho  may  be  made 
such  by  the  spontaneous  act  of  the  surviving  trustee,  to  take  effect 
during  his  life;  but  there  seems  nothing  to  prevent  our  considering  it 
as  meaning  the  person  who  may  be  made  such  by  devise  and  bequest ; 
and  if  we  do  not  consider  the  word  'assigns'  as  meaning  such  persons, 
it  would  in  this  will  have  no  meaning  or  efifect  whatever."  It  is  clear 
that  the  construction  given  by  the  court  in  that  case  was  because  it 
was  absolutely  necessary  to  give  any  effect  or  meaning  to  the  will 
whatever.  The  doctrine  is  most  clearly  enunciated,  as  it  is  everywhere 
else,  that  the  trustee  could  not  while  living  without  an  express  authority 
for  that  purpose,  delegate  his  power  to  another ;  and  it  is  difficult  to 
see  how  it  can  be  relied  upon  as  an  authority  to  support  the  deed  of 
Williams  to  the  plaintiff.     .     .     . 


108  TEUSTS.  (Part  2 


KATZ  V.  MILLER. 

(Supreme  Court  of  Wisconsin,  1912,  148  Wis.  63;  133  N.  W.  1091.) 

SiSBECKER,  J.     .     .     .     The  evidence  fails  to  show  that  Miss  Chaffee 
took  any  active  part  in  the  management  of  the  property,  but  it  shows 
that  in  the  control  and  management  of  this  property  Bigelow  practical- 
ly did  everything  required  to  be  done  to  discharge  the  obligations  im- 
posed by  the  trust.     It  is  averred  that  this  does  not  constitute  proof 
authorizing  Bigelow  to  act  for  Miss  Chaffee  as  such  trustee,  because 
his  asserted  authority  cannot  be  established  by  such  declarations.    We 
do  not  regard  his  statements  as  irrelevant  to  the  inquiry;  they  bear 
on  the  question  of  his  authority  to  act  for  her,  and  should  be  con- 
sidered in  connection  with  the  other  facts  and  circumstances  of  the 
case.     It  is  undisputed  that  he  as  trustee  did  the  negotiating  for  this 
lease ;  that  he  dealt  with  the  plaintiff  concerning  the  assignment  there- 
of to  the  plaintiff,  and  conducted  all  of  the  transactions,   including 
the  reception  of  the  rents  due  under  the  lease,  practically  as  sole  trustee, 
for  a  period  of  over  a  year,  and  that  Miss  Chaffee  at  no  time  through- 
out this  time  appeared  to  take  part  in  or  objected  to  this  method  of 
conducting  the  business  in  which  she  was  a  co-trustee.     Her  conduct 
respecting  the  matter  is  persuasive  as  tending  to  show  that  she  did 
intrust  the  entire  management  of  the  trust  and  the  control  and  handling 
of  the  trust  property  to  her  co-trustee,  Bigelow,  and  tends  to  support 
the  evidence   of   Bigelow  that   she  conferred   full   authority   on   him 
to  act  for  and  represent  her  in  all  these  respects.    The  acts  of  Bigelow 
must  be  held  to  have  had  her  approval  and  assent  and  to  be  binding 
on  them  as  trustees  in  the  transactions  between  them  and  the  plain- 
tiff concerning  this  lease  and   the   occupancy   and   use   of   the   trust 
property.     .     .     . 


MARKEL  V.  PECK. 

(Missouri  Court  of  Appeals,  1910,  144  Mo.  App.  701;  151  S.  W.  772.) 

Cox,  J.— Action  for  damages  for  breach  of  contract,  trial  by  jury 
and  verdict  for  plaintiff.     .     .     . 


Cll.    5)  DUTIES     OF    A     TRUSTEE.  199 

The  court,  in  sustaining  the  motion  for  a  new  trial  in  this  case, 
recited  that  it  was  by  reason  of  the  error  of  the  court  in  giving  in- 
struction mniiber  one  on  behalf  of  plaintilT.  This  instruction  told 
the  jury  that  if  they  should  believe  from  the  evidence  that  on  or 
about  said  6th  day  of  March,  1903,  said  trustees,  defendants  herein, 
or  a  majority  of  them,  authorized  Stephen  Peck  &  Bro.  to  execute 
the  contract  for  lease,  read  in  evidence,  and  that  said  Stephen  Peck 
and  Bro.  did  execute  such  contract,  and  that  plaintiff  had  fully  per- 
formed, or  offered  to  perform,  its  conditions  upon  his  part,  and  that 
the  defendants,  or  a  majority  of  them,  had  refused  to  perform  the 
same  in  accordance  with  the  terms  thereof,  then  the  verdict  should  be 
for  the  plaintiff,  and  unless  they  should  so  find  the  facts,  the  verdict 
should  be  for  defendants.  Appellant  insists  that  this  instruction  was 
correct  under  the  evidence,  and  that  the  verdict  was  for  the  right  party, 
while  respondents  insist  that  the  instruction  was  wrong  for  the 
reason  that  the  defendants  as  trustees  had  no  power  to  delegate  their 
authority,  and,  for  that  reason,  could  not  appoint  an  agent  to  execute 
a  contract,  and  further  that  the  authority  of  the  agent,  if  permissible 
at  all,  must  be  in  writing,  and  that  a  trustee,  either  by  himself  or  an 
agent  could  not  execute  a  lease  to  begin  in  futuro. 

The  first  proposition  that  confronts  us  in  this  investigation  is  as  to 
whether  or  not  those  defendants,  trustees  under  the  will  of  Charles 
H.  Peck,  invested  with  the  power  to  manage  and  control  the  estate 
committed  to  their  charge,  and  to  execute  leases  thereon,  could  dele- 
gate that  power  by  appointing  an  agent  to  attend  to  that  matter  for 
them. 

The  general  rule  is  that  a  trustee  of  an  express  trust,  invested  with 
powers,  the  execution  of  which  calls  for  the  exercise  of  discretion  and 
judgment  on  the  part  of  the  trustee,  cannot  delegate  such  powers  to 
any  one,  and,  hence,  the  performance  of  any  act,  requiring  the  exer- 
cise of  discretion,  must  be  done  by  the  trustee  himself  and  cannot  be 
delegated  to  an  agent.  CI  Perry  on  Trusts,  402;  Graham  v.  King. 
50  Mo.  22;  Bales  v.  Berry,  51  Mo.  449;  Polliham  v.  Rcvely,  181  Mo. 
622,  81  S.  W.  182.) 

The  office  of  trustee  is  one  of  personal  confidence  and  cannot  bo 
delegated.  The  reason  of  the  rule  lic-s  in  the  fact  that  flu-  grantor  who 
creates  a  trust  and  invests  the  trustee  with  powers,  calling  for  the 
exercise  of  discretion  on  the  part   of  the  trustee  in  their  execution, 


200  TRUSTS.  (Part  2 

selects  the  trustee  by  reason  of  his  confidence  in  the  integrity  and  good 
judgment  of  the  trustee,  and  when  the  trustee  accepts  the  trust,  he 
does  so  with  the  imphed  understanding  that  he  will  discharge  the 
duties  incumbent  upon  him,  by  reason  of  the  trust,  according  to  his 
own  best  judgment,  and,  hence,  unless  the  grantor  expressly  provides 
that  the  trustee  may  delegate  the  powers  conferred,  he  cannot  do  so. 
He  may  delegate  authority  to  perform  a  purely  ministerial  act ;  that 
is,  an  act  not  requiring  the  exercise  of  discretion,  for  this  is  not  a 
delegation  of  the  trust.  "The  trustee  must,  at  times,  act  through 
attorneys  or  agents,  and,  if  he  determines  in  his  own  mind  how  to 
exercise  the  discretion  and  appoints  agents  or  instruments  to  carry 
out  his  determination,  he  cannot  be  said  to  delegate  the  trust,  even 
though  deeds  or  other  instruments  are  signed  by  attorneys  in  his  name." 
(Perry  on  Trusts,  sec.  409.) 

It  has  been  uniformly  held  in  this  State  that  trustees,  appointed  in 
a  deed  of  trust,  to  make  sale  of  land  conveyed  therein,  cannot  delegate 
the  power  to  make  the  sale,  and  the  reason  assigned  is  well  stated  by 
Wagner,  Judge,  in  Graham  v.  King,  50  Mo.  22,  as  follows : — "The 
office  and  duties  of  a  trustee  are  matters  of  personal  confidence,  and 
he  must  exercise  a  just  and  fair  discretion  in  doing  whatever  is  right 
for  the  best  interest  of  the  debtor.  He  must  in  person  supervise  and 
watch  over  the  sale,  and  adjourn  it  if  necessary,  to  prevent  a  sacrifice 
of  the  property,  and  no  one  can  do  it  in  his  stead  unless  empowered 
thereto  in  the  instrument  conferring  the  trust.  A  trustee  cannot 
delegate  the  trust  or  power  of  sale  to  a  third  person,  and  a  sale  exe- 
cuted by  such  delegated  agent  is  void." 

If  this  rule  should  prevail  in  the  matter  of  a  sale  of  land  for  the 
purpose  of  collecting  a  debt,  under  a  power- granted  in  a  deed  of  trust, 
in  which  the  duty  of  the  trustee,  in  executing  the  trust,  is  specifically 
provided,  it  should,  for  a  much  stronger  reason,  apply  to  a  trustee 
charged  with  the  management  of  a  large  estate  for  a  long  term  of 
years  which  necessarily  requires  the  constant  exercise  of  vigilance  and 
discretion. 

In  this  case,  the  will  under  which  these  trustees  were  acting  made 
no  provision  whatever  for  a  delegation,  by  them,  of  any  of  the  powers 
conferred  upon  them  under  the  will,  and  our  conclusion  is  that  they 
possessed  no  power  to  appoint  an  agent,  either  verbally  or  by  writing, 
and  shift  to  the  agent  the  performance   of   any  duty  requiring  the 


Ch.    5)  DUTIES    OF  A    TKUSTEE,  lH)l 

exercise  of  any  discretion  upon  their  part;  and  as  the  execution  of  a 
contract,  such  as  the  one  sued  upon  in  this  case,  necessarily  called  for 
the  exercise  of  some  discretion  and  judgment,  it  could  not  be  executed 
in  a  way  to  bind  the  estate  or  these  defendants  in  their  capacity  as 
trustees,  by  any  agent  which  they  might  appoint.  True,  they  might, 
if  they  had  agreed  upon  the  contract  themselves,  settled  its  terms  and 
agreed  upon  every  question  requiring  the  exercise  of  discretion  or 
judgment,  delegate  to  an  agent  the  naked  power  to  sign  the  contract, 
but  that  is  not  this  case.  The  evidence  in  this  case  wholly  fails  to  show 
that  the  trustees  made  this  contract.  The  contract  purports  upon  its 
face  to  have  been  executed  by  an  agent  of  these  defendants,  and 
plaintiff  tried  his  case  upon  that  theory.     .     .     . 


SELECTED 

CASES  ON  EQUITY 


BY 

GEORGE  L.  CLARK 

Author  of  "Principles  of  Equity 


PAET  III— CHAPTERS  YI  TO  XT. 


1921 

E.  W.  STEPHENS  PUBLISHING  COMPANY 

Columbia,  Missouri 


Copyright  1921 

BY 

George  L.  Clark. 


TABLE  OF  CONTENTS 


PART  III. 


CHAPTER  VI. 
Rkformatiox    of    Instruments    1 

CHAPTER  VII. 

Rescission    40 

Section  1.    Mistake  46 

Section  2.     Fraud    67 

Section  3.     Duress  and  Undue  Influence    82 

Section  4.     Illegality— Breach  of  Contract    88 

CHAPTER  VIII. 

Bills  Quia  Timet  and  to  Remove  Cloud  on  Title  94 

Section  1.     Cancellation  of  Contracts   94 

Section  2.     Bills  to  Remove  Cloud  on  Title   105 

Section  3.     Other  Quia  Timet  Relief 120 

CHAPTER  IX. 
Bills  of  Interpleader   ^25 


Bills    of   Pe\ce 


Miscellaneous 


CHAPTER  X. 
159 

CHAPTER  XI. 

195 


(III) 


TABLE  OF  CASES 


Acheson  v.  Miller   209 

Adams  v.   Gillig "0 

Adm'r     of     McDonald,    Glaston- 
bury  V.    lO-^ 

Armstrong,    Cogswell   v.    131 

Arthur,   Fargo  v.   __- 130 

Ashurst   V.    McKenzie    117 

Atkins   V.    Chilson    217 

Ballon  V.  Inhabitants  of  Hopkin- 

ton    167 

Barringer,    Beeler  v.   195 

Bates   V.    Delavan    46 

Batty   V.    Chester   88 

Beeler  v.   Barringer 195 

Blettner,   Jack  v.   67 

Blodgett,    Park   Bros.   v.    21 

Boston.    Welch   v.    132 

Breen    v.    Donnelly    36 

Brown,   Cadigan  v.    159 

Brown    v.    Cozard    213 

Broughton  v.   Hutt 54 

Byers  v.  Sansom  Thayer  Co.  125,  139 


Cadigan   v.    Brown    

Camplin,   Parish  v.   

Capshaw  v.    Fennell   

Carmichael   v.    Lathrop   

Carpenter,    Cook   v.    

Central  Lead  Co.,  Roberts  v.  — 

Chadwick,    Langworthy   v.    

Challen,  Holland  v. 

Chester,   Batty  v. 

Chicago  V.  Chicago  City  Ry.  Co. 

Chicago,   Wilkie   v.    

Chicago  City  Ry.  Co.,  Chicago  v. 

Chilson,   Atkins  v. 

Clowes  V.   Higginson   

Cogswell    V.    Armstrong    

Cook   V.    Carpenter    

Cook  V.  Earl  of  Rosslyn 

Cooper  V.   Joel   

Covington,  Skinkle  v. 

Cowls   V.    Cowls   

Cozard,   Brown  v.   

Crane  v.  McDonald 

Credits       Gerendeuse      v.       Van 

Weede 

Crowder,   Matthews  v. 

Curteis    v.    Wormald    


159" 

32 

2 

228 
175 

96 
120 
180 

88 
169 
171 
169 
217 

56 
131 
175 
146 

98 
192 
224 
213 
127 

137 

92 

197 

(IV) 


Dambman   v.   Schulting 49 

Davenport  v.   Sovil   44 

Davies  v.   Humphries 207 

Day   Co.  v.  State 105 

Delavan,    Bates   v.    46 

DeZoya,   Wierich   v.    220 

Dickson,    Musgrave   v.    204 

Donnelly,   Breen  v.   36 

Dowe,  Galveston,  etc.  R.  R.  v.  __  187 

Dunn   V.    Dunn   86 

Duval  V.  Wellman 89 

Earl  of  Powis,  Powell  v. 160 

Earl  of  Rosslyn,  Cook  v. 146 

Emerson,   Gould  v.   52 

Emmett,   Post  v.   126 

Ensminger,   Kinney  v.   37 

Fargo  V.  Arthur 130 

Fennell,  Capshaw  v. 2 

Fetters,  Stafford  v. 19 

Fluker  v.  Taylor  203 

Fly,    Smith   v.    3 

Fort  Dearborn  Bank,  Rauch  v.  _   143 

Frazier,   Garrison   v.   112 

Frost  V.   Spitley   108 

Gale    V.    Lindo    94 

Galveston  etc.  R.  R.  v.  Dowe  __-   187 
Gans,  Swedesboro,  L.  &  B.  Ass'n 
V.     59 

Gardner,   McRee  v. 114 

Garrett,    Peirce   v. . 205 

Garrison  v.   Frazier 112 

Gee  v.  Spencer 53 

German    etc.     Ins.     Co.    v.    Van 

Cleave    172 

Gill,  Noel's  Ex'r  v. 26 

Gillig,  Adams  v. 70 

Gilmore  v.  Thomas 40 

Glastonbury    v.     Adm'r     of    Mc- 
Donald     103 

Gorman  v.   MuUins '. 226 

Gorton,  Moeckly  v. 101 

Gould  V.  Emerson 52 

Green,    Quinn   v.    153 

Griffiths,  Summers  v. 80 

Gruenstein,    Gurley   v.    155 

Grymes  v.   Sanders   64 

Gurley  v.    Gruenstein    155 


TABLE    OF  CASES. 


Hamilton    v.    McLean    221 

Hammond  v.   Pennock 78 

Hammond   Co..   Papke  v. 95 

Harlow   v.   LaBrun   71 

Hartford  Ins.  Co.,  Palmer  v.  ___  38 

Hennesj',   Pitcher  v.   18 

Hervey,  Metcalf  v.   130 

Hig^inson,  Clowes  v. 56 

HoUand  v.  Challen 180 

Home  Ins.  Co.,  Virginia  etc.  Co. 

V. 179 

Hopkins.    Southern    Steel    Co.    v.  164 

Hough,    Wetherill   v.    198 

Howard,   Lent  v.   195 

Huckabee,  U.  S.  Lyon  etc.  v.  __  82 

Humphries,    Davies  v.   207 

Hunger,   Sanxay  v.   117 

Hutt,  Broughton  v. 54 

Hutton,  Ivinson  v. 1 

Inhabitants,  etc.,  Ballou  v. 167 

Ivinson    v.    Hutton    1 

Jack   V.    Blettner    67 

Joel,  Cooper  v. 98 

Jordan  v.   Stevens  62 

Keister  v.   Mej^ers - 11 

Keyes  v.  Little  York,  etc.  Co.  __  162 

King  v.  Townshend 115 

Kinney  v.   Ensminger 37 

Knight,  Thornton  v. 97 

Koppinger  v.    O'Donnell 156 

Kowalke   v.    Milwaukee   etc.    Ry. 

Co.    46 

LaBrun,  Harlow  v. 71 

Langworthy   v.    Chadwick 120 

Lathrop,   Carmichael  v. 228 

Legate  v.  Legate 15 

Lent  v.   Howard 195 

Lindley,  Vanatta  v. 100 

Lindo,    Gale  V.    94 

Linington   v.   Strong 76 

Little  York  etc.  Co.,  Keyes  v.  __  162 

Lockwood,   Mills  v. 35 

Lund  v.   Seamen's    Bank 147 

Lyman  v.  United  Ins.  Co. 58 

Lytle   V.    Sandefur   107 

McAvoy,  Sibert  v. 44 

McClurg  V.    Phillips   216 

McConnell    v.    Scott    211 

McDonald,    Crane    v.    127 

McKenzie,  Ashurst  v. 117 

McLean,  Hamilton  v. 221 

McRee  v.    Gardner   114 

Macomber  v.    Peckham 24 

Makepeace  v.   Rogers 200 

Marshall,  Paget  v. 7 

Matthews  v.  Crowder 92 

Metcalf  v.  Hervey 130 


Meyer,  Steuart  v. 111 

Mevers,    Keister  v.    11 

Mifler.   Acheson   v.    209 

Mills   V.   Lockwood   35 

Milwaukee  etc.  Ry.  Co.,  Kowalke 
V.    46 

Miner,  Wells-Fargo  Co.  v. 149 

Mitchell,    Vanderbilt   v.   73 

Moeckly  v.   Gorton  101 

ATorse   v.    Woodworth    83 

Mullins,    Gorman   v.    226 

Musgrave  v.  Dickson 204 

Nickell,    Shroyer    v.    34 

Noel's   Kx'r  v.   Gill   26 

O'Donnell,  Koppinger  v. 156 

Paget  V.   Marshall 7 

Palmer  v.  Hartford  Ins.  Co.  _--  38 

Papke  V.   Hammond  Co. 95 

Parish  v.  Camplin 32 

Park  Bros.  v.   Blodgett 21 

Partridge    v.    Partridge    16 

Patton.   Quinn  v.   152 

Peckham,   Macomber  v. 24 

Peirce  v.   Garrett -205 

Pennock,   Hammond  v.   78 

Phillips,  McClurg  v. 216 

Pitcher  v.   Hennesy 18 

Post  v.   Emmett 126 

Potter  v.   Potter 30 

Powell  v.  Earl  of  Powis 160 

Prudential      Assurance      Co.      v. 

Thomas 135 

Quinn   v.    Green   153 

Quinn  v.  Patton 152 

Ranch  v.  Ft.  Dearborn  Bk. 143 

Relief  Ins.  Co.,  Steinbach  v. 41 

Roberts  v.  Central  Lead  Co.  .-_     96 
Rogers,    Makepeace  v.    200 

St.  Louis,  Sylvester  Coal  Co.  v.  _  184 

Sandefur,  Lytle  v. 107 

Sanders,    Grymes   v.    64 

Sanger   v.    Wood    77 

Sansom  -  Thayer        Co.,        Byers 

v.    125,  139 

Sanxay  v.   Hunger 117 

Schisselbauer,    Wadsworth    v.    __  215 

vSchulting,   Dambman  v. 49 

Scott.  McConnel  v.   ■..-  211 

Seamen's  Bank,   Lund  v. 147 

Seely,   Woodward  v. 184 

Sherwood  v.  Sherwood 28 

Shroyer    v.    Nickell    34 

Siliert   V.   McAvoy   44 

Skinklc   V.   Covington 192 

.Smith    V.    h'ly    3 

Southern  Steel  Co.  v.  Hopkins  .  164 


VI 


TABLE   OF    CASES. 


Sovil,    Davenport   v.    44 

Spencer,    Gee  v.    53 

Spitlev.    Frost   v.    108 

Stafford  V.  Fetters 19 

Stark,   Webster   v.   13 

State,  Day  Co.  v.   105 

State  ex  rel  v.  Westfall 119 

Steinbach  v.  Relief  Ins.  Co. 41 

Steuart  v.   Meyer 111 

Stevens,   Jordan   v.    62 

Strong,    Linington   v.    76 

Strong  V.   Williams 230 

Summers   v.    Griffiths   80 

Swedesboro    L.    &    B.    Ass'n    v. 

Cans    59 

Sylvester  Coal  Co.  v.  St.  Louis  _  184 

Taylor,  Fluker  v. 203 

Thomas,   Gilmore  v.   40 

Thomas,     Prudential     Assurance 
Co.    v.    135 

Thornton   v.    Knight   97 

Townshend,   King  v. 115 

United  Ins.  Co.,  Lyman  v. 58 

United  States,  Lyon  etc.  v.  Huck- 
abee    82 

Vanatta  v.   Lindley 100 

Vanderbilt  v.   Mitchell 73 


Van    Cleave,    German    etc.     Ins. 
Co.    v.    172 

Van  Duyne  v.  Vreeland 122 

Van  Weede,  Credits   Gerendeuse 

V. 137 

Virginia   etc.    Co.    v.    Home    Ins. 

Co.    179 

Vreeland,  Van  Duyne  v. 122 

Wadsworth  v.   Schisselbauer   —  215 

Wanipler  v.  Wampler 91 

Warington   v.    Wheatstone 134 

Washington  Co.  v.  Williams 177 

Webster  v.  Stark 13 

Welch  v.   Boston  132 

Wellman,   Duval  v.   89 

Wells-Fargo  Co.  v.   Miner 149 

Westfall,   State  ex  rel  v. 119 

Westfeldt,   Winston  v. 233 

Wetherill   v.    Hough   198 

Wheatstone,   Warington  v. 134 

Wierich  v.   De  Zoya 220 

Wilkie  V.   Chicago 171 

Winston  v.  Westfeldt 233 

Williams,   Strong  v.   230 

Williams,  Washington  Co.  v.  —  177 

Wood,  Sanger  v. 77 

Woodward    v.    Seely    184 

Woodworth,   Morse  v. 83 


CASES  ON  EQUITY 

PART  III. 

CHAPTER  VI.  REFORMATION  OF 
INSTRUMENTS 


I  VINSON  V.  HUTTON.i 

(Supreme  Court  of  the  United  States.  1878,  98  U.  S.  79.) 

Mr.  Justice  Clifford.  .  .  .  Courts  of  equity  have  jurisdiction 
of  controversies  arising  out  of  transactions  evidenced  by  written 
instruments  which  are  lost;  or  if  through  mistake  or  accident  the  in- 
strument has  been  incorrectly  framed,  or  if  the  transaction  is  vitiated 
by  illegality  or  fraud,  or  if  the  instrument  was  executed  in  ignorance 
or  mistake  of  facts  material  to  its  operation,  the  error  may  be  cor- 
rected or  the  erroneous  transaction  may  be  rCvScinded. 

Equities  of  the  kind,  whether  it  be  for  the  re-execution,  reform,  or 
rescission  of  the  instrument,  like  the  equity  for  specific  performance 
of  a  contract,  are  incapable  of  enforcement  at  common  law.  and 
therefore  necessarily  fall  within  the  peculiar  province  of  the  courts 
invested  with  equitable  jurisdiction. 

Power  to  reform  written  contracts  for  fraud  or  mistake  is  every- 
where conceded  to  courts  of  equity,  and  it  is  equally  clear  that  it  is 
a  power  which  cannot  be  exercised  by  common-law  courts.  ITearne 
V.  Marine  Insurance  Company,  20  Wall.  490. 

Relief  in  such  a  case  can  only  be  granted  in  a  court  of  equity; 
and  Judge  Story  says,  if  the  mistake  is  made  out  of  proofs  entirely 
satisfactory,  equity  will  reform  the  contract  so  as  to  make  it  conform 
to  the  precise  intent  of  the  parties;  but  if  the  proofs  are  doubtful 
and  unsatisfactory,  aiul  the  mistake  is  not  made  cntin-ly  plain,  equity 
will  withhold  relief,  upon  the  ground  that  the  wridcn  paper  ought  to  be 
treated  as  a  full  and  correct  expression  of  tin-  intent,  unlil  the  con- 

iThe  statement  of  facts  has  usually  been  omitted.  Where  parts  of  llio 
opinion  have  been  omitted,  such  omission  has  been  indicated  thus:     .     .     . 

(1) 


2  REFORMATION    OF    INSTRUMENTS.  (Part    3 

trary  is  established  beyond  reasonable  controversy.  1  Story,  Eq.  Jur. 
(9th  ed.),  sect.  152;  Gillespie  v.  Moon,  2  Johns.  (N.  Y.)  Ch.  585; 
Rhode  Island  v.  Massachusetts,  15  Pet.  271;  Daniel  v.  Mitchell,  1 
Story,  172. 

Authorities  which  support  that  proposition  are  quite  too  numerous 
for  citation,  and  the  rule  is  equally  well  established  that  parol  proof 
is  admissible  to  prove  the  alleged  accident  or  mistake  which  is  set  up 
as  the  ground  of  relief.  Hunt  v.  Rousmanier,  8  Wheat.  174;  1  Story, 
Eq.  Jur.  (9th  ed.),  sect.  156;  3  Greenl.  Evid.  (8th  ed.),  sect.  360; 
Adams,  Eq.   (6th  ed.)   171. 

Support  to  the  latter  proposition  is  also  found  in  all  the  standard 
writers  upon  the  law  of  evidence.  Courts  of  equity,  says  Taylor, 
will  also  admit  parol  evidence  to  contradict  or  vary  a  writing  where,  by 
some  mistake  in  fact,  it  speaks  a  dififerent  language  from  what  the 
parties  intended,  and  where,  consequently,  it  vrould  be  unconscionable 
or  unjust  to  enforce  it  against  either  party,  according  to  its  terms. 
2  Taylor,  Evid.  (6th  ed.)  1041. 

Viewed  in  the  light  of  these  suggestions,  it  is  evident  that  the  ruling 
of  the  court  below,  that  the  complainant  had  a  plain,  adequate,  and 
complete  remedy  at  law,  was  erroneous  and  utterly  subversive  of  the 
complainant's  rights,  as  it  is  clear  that  the  common-law  courts  could 
not  give  him  adequate  relief. 


CAPSHAW,  ET  AL.  v.  FENNELL. 

(Supreme  Court  of  Alabama,  1848,  12  Ala.  780.) 

Dargan,  J.  .  .  .  The  contract  in  this  case,  was  for  the  sale 
of  a  tract  of  land,  containing  300  acres,  more  or  less.  The  vendor 
represented  to  the  vendee,  that  it  contained  300  acres,  when  in  fact 
is  contained  only  282  acres,  but  the  sale  was  not  expressly  by  the  acre, 
but  was  for  a  gross  sum,  for  the  tract.  The  contract  of  sale  was 
entered  into  in  December,  1840,  and  a  deed  was  made  to  the  com- 
plainant by  Simmons,  in  whom  was  the  title,  in  March,  1842.  The 
vendor  never  had  any  written  title,  and  from  the  answer,  and  all  the 
circumstances  brought  to  the  notice  of  the  court  by  the  record,  we 
believe  that  the  representation  was  innocently  made.     The  defendant 


Ch.    6)  REFORMATION    OF    INSTRUMENTS.  ?, 

purchased  the  tract,  and  paid  for  it,  supposing  it  contained  300  acres, 
and  there  is  no  evidence  whatever  to  show,  that  he  discovered  the 
mistake,  at  any  time  previous  to  the  llnal  consummation  of  the  con- 
tract. 

The  law  is  that  if  the  vendor  makes  false  representations  as  to 
the  quantity  of  land  about  to  be  sold,  knowing  them  to  be  false,  the 
vendee  may  have  compensation  for  the  deficiency.  (Taylor  v.  Huston) 
2  Hen.  &  M.  161  ;  Sugden  on  Vend.  391 ;  Minge  v.  Smith,  1  Ala.  415. 
But  here  the  representation  was  innocently  made,  under  the  belief  that 
the  tract  of  land  contained  300  acres.  This  was  a  mere  mistake,  not 
a  fraud.  When  there  has  been  a  mutual  mistake  as  to  the  quantity  of 
land  sold,  it  is  difficult  to  lay  down  any  precise  rule,  that  will  always 
guide  us  in  determining  when  compensation  will,  and  when  it  will 
not  be  allowed ;  but  inasmuch  as  the  complainant  in  this  case,  received 
the  deed  in  March,  1842,  and  on  the  face  of  the  deed,  notice  of  the 
deficiency  is  fully  given,  a  year  afterwards  he  renewed  his  note  for  the 
small  balance  of  the  purchase  money,  without  objction  or  claim  for 
compensation,  we  believe,  that  if  the  true  quantity  had  been  known  at 
the  time  of  entering  into  the  contract,  to  both  parties  the  terms  of  the 
contract  would  not  have  been  altered.  We  arrive  at  this  conclusion  of 
fact,  from  the  nature  of  the  contract  itself ;  from  the  conduct  of  the 
complainant  in  receiving  the  deed,  which  giv2s  notice  of  the  deficiency 
on  its  face,  without  objection;  then  a  year  after,  as  stated,  renewing 
his  note  for  the  balance  of  the  purchase  money,  then  saying  nothing  of 
the  deficiency.  Also,  the  exhibits,  being  the  letters  of  the  defendant, 
show,  that  the  locality  was  a  leading  inducement  to  the  contract ;  and 
we  cannot  come  to  the  conclusion  that  the  terms  of  the  contract  would 
have  been  altered,  had  the  true  quantity  been  known.  In  this  case, 
then  we  cannot  conceive  how  compensation  can  be  allowed. 

The  decree  therefore,  dismissing  the  bill,  was  correct,  and  is  hereby 
affirmed. 


SMITH  V.  FLY. 
(Supreme  Court  of  Texas,  1850,  24  Texas  34.'5.) 

WllEEUvR,  C.  J.      .     .      .      It  appears  to  be  sellkd   that,   in   the  sale 
of  land,  where  there  has  been  misrepresentation  as  to  the  (|uanlity. 


4  EEFORMATION   OF   INSTRUMENTS.  (Part    ?> 

though  innocently  made,  and  the  parties  were  under  a  mistake  as  to 
the  quantity,  and  the  deficiency  is  so  great  as  to  have  been  material, 
in  the  object  of  the  purchase,  affecting  the  essence  of  the  contract 
equity  will  grant  relief.  1  Sug.  Vend.,  ch.  7,  sec.  3 ;  Mitchell  v.  Zim- 
merman, 4  Tex.  75;  4  Kent,  Com.  457;  1  Story,  Eq.,  Sec.  141.  And 
this,  says  Judge  Story,  would  be  so,  although  the  land  was  described 
as  so  many  acres,  "more  or  less."  It  would  certainly  be  so,  where  the 
land  is  sold  by  the  acre,  and  the  statement  of  the  quantity  of  acres  in  the 
deed  is  not  mere  matter  of  description,  but  is  of  the  essence  of  the 
contract. 

The  plaintiff  alleges,  that  he  bought  and  paid  for  the  land,  by  the 
acre ;  that  there  was  misrepresentation,  and  a  mistake  as  to  the  quan- 
tity of  land  conveyed;  and  that  it  fell  short  115  acres  of  the  quantity 
the  tract  was  supposed  to  contain,  and  the  deed  purported  to  convey. 
A  deficiency  so  great,  in  a  sale  by  the  acre,  of  a  tract  of  500  acres, 
can  scarcely  be  supposed  to  have  been  within  the  risk  which  the  parties 
meant  to  incur,  or  to  have  been  intended  to  be  embraced  by  the  words 
"more  or  less,"  employed  in  the  deed.  There  can  be  little  doubt  that 
the  allegations  of  the  petition  show  a  cause  of  action;  and  the  question 
is,  whether  it  was  barred  by  the  statute  of  limitations,  at  the  time  of 
bringing  the  suit. 

It  has  been  adjudged,  by  very  high  authority,  upon  full  consider- 
ation, that  an  action  at  law,  for  money  had  and  received,  could  not  be 
maintained  in  a  case  like  the  present,  to  recover  back  the  money  paid 
for  the  number  of  acres  alleged  to  be  deficient.  The  purchaser  must 
resort  to  a  court  of  equity  to  obtain  relief  on  the  ground  of  mistake. 
Homes  v.  Barker,  3  Johns.  506,  510.  If  the  present  suit  be  regarded 
as  an  action  at  law,  for  money  had  and  received,  or  as  an  action  to  re- 
cover back,  money  paid  by  mistake,  it  must  be  held  that  the  cause  of  ac- 
tion accrued  immediately  upon  the  payment  of  the  money ;  and  conse- 
quently, that  the  right  of  action  was  barred.  .  .  .  But  the  present  is 
not  a  case  in  which  an  action  at  law,  to  recover  back  money  paid 
by  mistake,  would  be  the  proper  remedy,  in  those  countries  where  the 
jurisdiction  of  law  and  equity  are  distinct.  The  ground  of  relief  is 
the  mistake,  which  having  been  carried  into  the  deed,  the  remedy  is 
in  equity.  In  the  case  first  above  cited  (3  Johns.  510),  Kent,  C.  J., 
said:  "I  confess  that  I  have  struggled  hard,  and  with  the  strongest 
inclination,  to  see  if  the  action   for  monev  had  and  received,  would 


Cll.    6)  REFORMATION    OF     IXSTRUMEXTS.  5 

not  help  the  plaintiff  in  this  case;  but  I  cannot  surmount  the 
impediment  of  the  deed,  which  the  plaintiff  has  accepted  from  the 
defendant,  and  which  contains  a  specific  consideration,  in  money  and 
the  quantity  of  acres  conveyed,  with  the  usual  covenant  of  seizin. 
Sitting  in  a  court  of  law,  I  think  I  am  bound  to  look  to  the  deed. 
as  the  highest  evidence  of  the  final  agreement  of  the  parties,  both 
as  to  the  quantity  of  the  land  to  be  conveyed,  and  the  price  to  be 
given  for  it.  If  there  be  a  mistake  in  the  deed,  the  plaintiff  must 
resort  to  a  court  of  equity,  which  has  had  a  long  established  juris- 
diction in  all  such  cases,  and  where  even  parol  evidence  is  held  to  be 
admissible,  to  correct  the  mistake." 

The  plaintiff's  case  is  one  where  the  remedy  is  for  equitable  relief, 
upon  the  ground  of  mistake.  1  Story,  Eq.  Sees.  141,  144.  Though  the 
statutes  of  limitations  are  not,  in  their  terms,  applicable  to  courts  of 
equity,  yet,  in  administering  relief,  they  act  in  obedience  and  analo.gy 
to  the  statute,  and  refuse  relief  wherever  the  claim  would  have  been 
barred  by  the  statute,  if  it  had  been  made  in  a  court  of  law.  Angell, 
Limitations,  Sec.  26;  12  Pet.  56;  1  Story,  Eq.  Sees.  64a,  529.  Courts 
of  equity,  it  has  been  said,  are  no  more  exempt  from  statutes  of 
limitations,  than  courts  of  law.  Id.  Where  the  statute  is  applicable 
to  a  claim  in  our  courts,  it  must  have  its  full  effect  and  operation  upon 
it,  whether  the  case  be  of  legal  or  equitable  cognizance.  But  if  the 
statute  does  not  in  terms  apply  to  the  case,  it  has  been  held  to  be 
governed  by  the  analogies  in  like  cases,  which  are  expressly  within 
its  provisions.  21  Tex.  264;  Leavitt  v.  Gooch,  12  id.  95.  If  the 
present  case,  being  a  suit  to  correct  a  mistake,  and  for  compensation 
for  a  deficiency  in  the  quantity  of  the  land  purchased,  is  not  ex- 
pressly within  the  statute,  the  analogy  would  seem  to  be,  to  an  action 
to  recover  back  money  paid  by  mistake,  in  those  cases  where  the  mis- 
take is  not  of  such  character  as  that  the  law  will  hold  the  party  paying 
concluded  thereby,  and  would  bring  the  case  within  the  period  of 
limitation  prescribed  in  the  first  section  of  the  statute.  O.  &■  W.  Dig. 
art.  1333. 

In  equity,  as  at  law,  the  general  rule  is,  that  the  cause  of  action 
arises  whenever  the  party  is  entitled  to  bring  suit ;  or  as  soon  as  he 
has  a  right  to  apply  to  a  court  of  equity  for  relief.  2  f^tory,  Eq.,  sec. 
1521a.  In  cases  of  fraud  and  mistake,  it  will  not  begin  to  run  until  the 
time  of  the  discovery  of  the  fraud  or  mistake.     Id.     WHu'thcr  fraud  or 


6  EEFOEMATION    OF    INSTRUMENTS.  (Part    3 

mistake  will  be  admitted,  as  an  exception  to  the  running  of  the  statute, 
is  an  open  question  in  this  court.  Smith  v.  Talbot,  18  Tex.  782;  Mason 
V.  McLaughlin,  16  id.  29. 

But  if  it  be  admitted  as  an  exception,  it  is  settled  that  it  will  only 
prevent  the  running  of  the  statute  until  the  fraud  is  discovered,  or 
by  the  use  of  reasonable  dihgence,  might  have  been  discovered  by  the 
party  applying  for  relief.  Thus,  in  the  case  of  Grundy  v.  Grundy,  12 
B.  Mon.  269,  it  was  held,  in  the  case  of  a  mistake  as  to  the  quantity 
of  land  sold,  that  the  statute  does  not  begin  to  run  till  the  mistake  is 
discovered,  or  until  it  ought  to  have  been  discovered.  But  the  opinion 
of  the  court  appears  to  have  been,  that  to  prevent  the  lapse  of  time 
from  operating  to  bar  the  suit,  the  plaintiff  must  show  that  it  was  not 
for  the  want  of  ordinary  diligence  that  the  mistake  was  not  discovered 
until  within  the  period  of  hmitation.  Id.  271.  And  in  Smith  v. 
Talbot,  18  Tex.  774,  it  was  held  by  this  court  to  be  the  rule,  where 
fraud  is  allowed  as  an  exception  to  the  statute,  that  the  right  of 
action  shall  be  deemed  to  have  accrued  to  the  plaintiff  at  the  time  when 
the  discovery  of  the  fraud  was  made,  or  when,  by  the  use  of  reasonable 
diligence,  it  might  have  been  made;  and  the  rule  was  applied  in  the 
determination  of  that  case. 

The  plaintiff  alleges  that  he  did  not  discover  the  deficiency  in  the 
quantity  of  land,  "until  some  time  in  the  month  of  January  last."    But 
he  does  not  assign  any  reason  why  the  discovery  was  not  sooner  made. 
There  was  nothing  in  the  nature  of  the  fact,  to  prevent  a  discovery. 
A  survey,  which  might  have  been  made  at  any  time,  would  at  once  have 
led  to  it.     And  the  failure  to  resort  to  so  obvious  a  means,  in  the 
absence  of  the  suggestion  of  any  other  cause  for  the  omission,  can 
but  be  regarded  as  attributable  solely  to  the  plaintiff's  own  negligence. 
We  think  the  discovery  of  a  fact,  susceptible  of  being  so  readily  as- 
certained, ought  to  have  been  sooner  made.  Then  negligence  of  the 
plaintiff  may  have  put  it  out  of  the  power  of  the  defendant  to  have 
recourse  upon  his  vendor,  and  to  permit  a  recovery  against  him  after 
such  a  lapse  of  time,  might  work  an  irreparable  injury,  which  it  prob- 
ably would  not  have  operated,  had  the  discovery  been  made  earlier, 
when  we  think,  it  ought  to  have  been  made.     We  are  therefore  of 
opinion,  that  the  failure  to  discover  the  mistake  is  no  answer  to  the 
running  of  the  statute. 


Ch.    6)  KEFOBMATIOX    OF     INSTRUMENTS. 


PAGET  V.  MARSHALL. 

(Supreme  Court  of  Judicature,  1884,  L.  R.  28  Ch.  D.  255.) 

Bacon,  V.  C.  ...  In  all  these  cases  on  the  law  of  mistake  it  is  very- 
difficult  to  apply  a  principle,  because  you  have  to  rely  upon  the  state- 
ments of  parties  interested,  and  upon  not  very  accurate  recollections 
of  what  took  place  between  them.  But  the  law  I  take  to  be  as  stated 
this  morning  by  Mr.  Hemming.  If  it  is  a  case  of  common  mistake — 
a  common  mistake  as  to  one  stipulation  out  of  many  provisions  con- 
tained in  a  settlement  or  any  other  deed,  that  upon  proper  evidence 
may  be  rectified — the  Court  has  the  power  to  rectify,  and  that  power 
is  very  often  exercised.  The  other  class  of  cases  is  one  of  what  is 
called  unilateral  mistake,  and  there,  if  the  Court  is  satisfied  that  the 
true  intention  of  one  of  the  parties  was  to  do  one  thing,  and  he  by 
mistake  has  signed  an  agreement  to  do  another,  that  agreement  will 
not  be  enforced  against  him,  but  the  parties  will  be  restored  to  their 
original  position,  and  the  agreement  will  be  treated  as  if  it  had  never 
been  entered  into.     .     .     . 

The  case  before  me  is  in  a  very  narrow  compass.  The  plaintifif 
had  taken  the  lease  of  a  site  from  the  Goldsmiths'  Company  upon  a 
contract  to  build  upon  it  a  very  valuable  and  commodious  structure. 
He  did  so,  and  his  plans  are  in  evidence,  it  is  quite  clear  what  his 
intention  was.  He  built  two  separate  ground-floor  tenements,  Nos. 
49  and  50,  to  be  let  to  two  separate  tenants.  He  kept  a  third.  No.  48, 
including  ground  and  first  floors,  intending  to  occupy  it  himself,  and 
the  fourth  part,  that  coloured  blue  on  the  model,  he  had  to  let  when 
the  negotiation  commenced  with  the  Defendant.  So  that  the  subject 
in  dispute  is  beyond  all  question.  The  two  shops,  Nos.  49  and  50, 
were  separate  and  distinct  things— as  separate  as  if  they  had  been 
in  some  other  street— and  the  third,  No.  48,  was  equally  separate  and 
distinct— built  by  the  Plaintifif  for  his  own  occupation,  and  for  carry- 
ing on  his  own  business,  and  constructed  so  that  those  objects  might 
be  conveniently  performed  by  him.  To  that  end  he  built  on  the  ground 
floor  of  No.  48  a  staircase  communicating  with  the  first  floor  of  No. 
48,  and  he  partitioned  off  the  first  floor  of  No.  48,  so  that  in  its  turn 
it  became  just  as  distinct  a  building— just  as  distinct  a  tenement— as 


8  REFORMATION    OF    INSTRUMENTS.  (Part    o 

Nos.  49  and  50,  and  the  purpose  was  distinct.    Then,  the  part  coloured 
bhie  (which  included  the  whole  first  floor  of  the  block  except  that  of 
No.  48,  and  all  the  upper  floors  without  any  exception)   being  still 
available,  and  the  Plaintifif  willing  to  let  it,  he  constructed  a  staircase 
which  led  from  the  street  past  the  first  floor  of  No.  48,  and  landed  upon 
the  blue  part,   I  will  call  it,  that  is  sufficient  description, — no  com- 
munication whatever  either  in  fact  being  made,  or  according  to  the 
evidence  ever  intended  to  be  made,  between  the  ground  or  first  floor 
of  No.  48  and  the  part  coloured  blue.     That  was  the  state  of  things 
when  these  parties  met  to  negotiate.     The  petition  which  efifectually 
severed  the  first  floor  of  No.  48  from  the  part  coloured  blue,  had  been 
completely  settled  and  arranged.     The   Defendant   on  his   first  visit 
looked  over  all  that  was  then  to  let,  ascertained  what  the  Plaintiff  meant 
to  let,  saw  the  first  floor  over  No.  48,  said  that  it  would  make  a  very 
handsome  warehouse,  but  knew  at  the  same  time  that  it  was  not  to  be 
let,  because,  to  use  his  own  expression  in  his  own  evidence,  the  Plain- 
tiff told  him  "we  mean  to  use  that  for  ourselves."    That  is  the  evidence 
which  the  Defendant  has  given  on  this  occasion.    He  says  that  he  was 
satisfied  to  some  extent  with  what  he  looked  at,  and  desired  to  ac- 
quire it,  but  he  must  have  a  packing-room.     He  could  not  mean  the 
first  floor,  that  which  he  said  was  a  magnificent  warehouse  could  not 
be  a  packing-room,  it  could  not  in  the  nature  of  things;  and  he  does 
not  say  that  that  was  in  his  mind,  still  he  insists  more  than  once  on  the 
necessity  of  having  a  packing-room.     I  am  mentioning  these  facts  in 
order  to  ascertain,  as  it  is  my  duty  to  do,  what  I  must  take  to  be  proved 
to  have  been  the  intention  of  the  parties  when  they  entered  into  the 
negotiation.     He  asks   for  a  packing-room.     The  brother  goes   with 
him  down  into  a  cellar — a  cellar  under  No.  48,  in  the  basement  of  No. 
48 — they  look  about  there,  and  the  brother  comes  in  and  says,  "You 
cannot  have  it."     No  wonder,  because  there  can  be  no  access  to  it 
but  from  the  floor  of  No.  48,  and  that  went  oft". 

Now,  it  would  be  impossible  for  me  to  connect,  and  there  was  a  very 
faint  attempt  made  to  connect,  the  necessity  which  was  present  in  the 
Defendant's  mind  to  have  a  packing-room,  with  the  magnificent  first 
floor,  which  he  now  says  he  had  in  his  mind  when  he  was  present. 
The  statement  about  putting  up  the  inscription  by  no  means  en- 
courages any  such  notion.  The  Defendant  desired  to  advertise  to  the 
public  by  means  of  a  large  inscription  on  the  front  of  that  which  was 


Cll.    6)  REFORMATION    OF     IXSTRUMEXTS.  9 

to  be  his,  the  trade  he  was  carrying  on.  He  wished  also  to  have  a 
similar  inscription  over  No.  48.  That  was  resisted.  It  was  the  sub- 
ject of  discussion  between  them;  the  reason  it  was  resisted  was  ex- 
plained to  him :  "If  we  granted  you  that,  it  would  look  as  if  you  were 
carrying  on  your  business  in  our  warehouse;  "but  they  said  that,  in 
order  to  accommodate  him  they  would  be  willing  to  insert  a  tablet, 
containing  his  name  and  business,  provided  it  did  not  interfere  with 
the  architectural  decorations  of  No.  48.  These  facts  are  beyond  all 
question.  Both  parties  are  agreed.  Then  the  plaintiff  writes  a  letter 
in  which  he  offers  to  let,  among  other  things,  the  first  floor  of  No. 
48.  This  is  answered  very  readily  by  the  Defendant,  who  accepts 
the  offer.  Instructions  are  sent  to  the  solicitors,  instructions  consist- 
ing only  of  this  letter.  Mr.  "Marten"  made  a  point  that  the  plaintiff, 
in  his  pleadings,  said  they  had  no  other  instructions.  They  must  have 
had  some  other  instructions.  I  should  read  the  word  "other"  used 
by  him  in  the  pleadings  as  meaning  no  different  instructions,  no  varia- 
tion in  form  or  otherwise  from  the  words  that  appear  in  the  letter. 
Then  the- lease  is  prepared  and  executed  in  accordance  with  the  let- 
ter, including  the  first  floor  of  No.  48. 

Under  these  circumstances,  the  facts  being  as  I  have  stated,  am  I. 
because  the  lease  has  been  executed  under  seal,  demising  to  the 
defendant  that  which  the  plaintiff  never  meant  to  let  him  have,  that 
which  the  defendant  says  he  knew  at  one  time  the  plaintiff  intended 
to  keep  for  himself,  that  which  he  has  never  claimed  at  any  period 
prior  to  the  letter— am  I  to  say  that  the  agreement  is  to  be  held  to 
be  irrevocable?  It  would  be  against  every  principle  that  regulates 
the  law  relating  to  mistakes,  and  it  would  be  directly  at  variance  with 
the  proved  facts  in  this  case.  On  the  evidence,  it  looks  very  like 
a  common  mistake.  The  defendant,  it  is  true,  says  in  his  defense, 
that  he  took  it  on  the  faith  that  the  first  floor  of  No.  48  was  intention- 
ally included  in  the  letter  of  the  13th  of  November.  1883.  Certainly 
he  never  said  so  until  it  is  said  in  the  defense,  which  I  am  looking  at 
now ;  but  he  has  not  said  so  in  his  evidence.  He  has  never  said  that 
he  intended  to  take  that.  The  argument  addressed  to  mc  has  been 
this:  "The  separation  of  No.  48  and  the  blue,  is  effected  solely  by 
means  of  a  brick-on-ond  partition  ;  and  that  is  easily  removed."  People 
building  brick-on-cnd  partitions  do  not  mean  them  to  be  easily  re- 
moved, unless  there  is  some  purpose  to  remove  ihem.  and  here,  using 


10  EEFORMATIOlSr    OF    INSTRUMENTS.  (Part    3 

the  defendant's  own  evidence  on  this  occasion,  at  that  time  the  par- 
tition was  effectually  finished,  and  the  defendant  knew  that  the  plain- 
tiff intended  to  reserve  it  for  his  own  use  in  his  own  business.  The 
law  being  such  as  I  have  said,  it  is  not  necessary  to  say  anything  about 
how  easily  you  can  make  holes  in  a  partition,  and  how  you  can  knock 
down  a  partition ;  you  can  pull  down  the  front  of  a  house  with  equal 
ease  if  you  have  proper  appliances  and  proper  workmen  to  do  it. 
The  way  it  is  forced  on  my  attention  is  the  reason  why  the  partition 
was  first  made,  why  it  was  foinid  to  be  in  existence  when  the  defend- 
ant first  inspected  it,  why  he  knew  from  that  time  as  well  as  he  knows 
now  that  it  never  was  the  intention  of  the  plaintiff  that  he  should 
have  that  "magnificent"  room  wdiich  formed  one  of  two  rooms  which 
constituted  the  business  place  intended  by  the  plaintiff  for  his  own 
use,  and  to  which  the  access  was  made  by  one  staircase  communicat- 
ing with  nothing  but  the  upper  room. 

But  without  being  certain,  as  I  cannot  be  certain  on  the  facts  be- 
fore me,  whether  the  mistake  was  what  is  called  a  common  mistake — 
that  is,  such  a  common  mistake  as  would  induce  the  court  to  strike 
out  of  a  marriage  settlement  a  provision  or  limitation — that  there  was 
to  some  extent  a  common  mistake  I  must  in  charity  and  justice  to 
the  defendant  believe,  because  I  cannot  impute  to  him  the  intention 
of  taking  advantage  of  any  incorrect  expression  in  this  letter.  He 
may  have  persuaded  himself  that  the  letter  was  right;  but  if  there 
was  not  a  common  mistake  it  is  plain  and  palpable  that  the  plaintiff 
was  mistaken,  and  that  he  had  no  intention  of  letting  his  own  shop, 
which  he  had  built  and  carefully  constructed  for  his  own  purposes. 

Upon  that  ground,  therefore,  I  must  say  that  the  contract  ought 
to  be  annulled.  I  think  it  would  be  right  and  just  and  perfectly  con- 
sistent with  other  decisions  that  the  defendant  should  have  an  op- 
portunity of  choosing  whether  he  will  submit,  as  the  plaintiff  asks 
that  he  should  submit,  to  have  the  lease  rectified  by  excluding  from 
it  the  first  floor  of  No.  48,  whether  he  will  choose  to  take  his  lease 
with  that  rectification,  or  w^hether  he  wnll  choose  to  throw  up  the 
thing  entirely,  because  the  object  of  the  court  is,  as  far  as  it  can, 
to  put  the  parties  into  the  position  in  wdiich  they  would  have  been  if 
the  mistake  had  not  happened. 

Therefore  I  give  the  defendant  an  opportunity  of  saying  whether 
he  will  or  will  not   submit  to  rectification.     If  he  does  not,  then  I 


Ch.    6)  REFORMATION    OF    INSTRUMENTS.  11 

shall  declare  that  the  agreement  is  annulled.  Then  we  shall  have  to 
settle  the  terms  on  which  it  should  be  annulled.  The  plaintiff  does 
not  object,  if  the  agreement  is  annulled,  to  pay  the  defendant  any 
reasonable  expenses  to  which  he  may  have  been  put  by  reason  of 
the  plaintiff's  mistake ;  but  it  must  be  limited  to  that.  I  should  like, 
if  it  be  convenient  for  counsel  or  for  the  parties,  to  have  an  answer  to 
the  proposition  I  have  made,  in  order  that  that  may  be  fully  before 
the  persons  whom  it  interests.  I  may  say  that  T  can  find  no  reason  for 
a  reduction  of  the  rent.  I  listened  attentivel}^  to  what  Sir  John  Ellis 
said,  and  to  what  Mr.  Parmer  said,  and  I  cannot  but  think  that  the 
rent  of  500  pounds,  if  the  lease  is  rectified,  ought  not,  with  any  show 

of  justice,  to  suffer  any  reduction. 

Marten,  for  the  defendant,  agreed  to  strike  out  the  first  floor  of 
No.  48  from  the  lease ;  the  lease  in  other  respects  standing  as  it  was 
executed. 

Bacon,  V.  C.  Then  the  decree  will  be,  the  defendant  electing  to 
have  rectification  instead  of  cancellation  of  the  lease,  let  the  lease  be 
rectified  by  omitting  from  it  all  mention  of  the  first  floor  of  No.  48. 
Then  as  to  the  costs  of  the  action,  the  plaintiff  is  not  entitled  to  costs, 
because  he  has  made  a  mistake,  and  the  defendant  ought  not  to  have 
any  costs,  because  his  opposition  to  the  plaintiff's  demand  has  been 
unreasonable,  unjust,  and  unlawful. 


KEISTER  V.  MYERS. 

(Supreme  Court  of  Indiana,  1888,  115  Ind.  313,  17  N.  E.  161.) 

MiTCHELiv,  C.  J.  .  .  .  The  appellants  contend,  however,  that 
the  complaint  is  insufficient  to  warrant  the  reformation  of  the  mort- 
gage, because  it  does  not  show  the  mutuality  of  the  mistake  complained 
of,  within  the  rulings  in  Allen  v.  Anderson,  44  Ind.  395,  Baldwin  v. 
Kerlin,  46  Ind.  426,  and  cases  of  that  class. 

As  has  been  seen,  it  was  averred  in  the  complaint  that  the  mort- 
gagors agreed  to  convey  the  whole  tract  as  a  security  for  the  debt, 
and  both  parties  intended  at  the  time  the  transaction  was  consum- 
mated that  the  entire  tract  should  be  included  in  the  mortgage,  but  by 
mistake  of  the  scrivener,  who  presumably  acted  for  both,  the  de- 
scription was  so  written  as  to  cover  only  the  undivided  one-third.  This 
sufficiently  disclosed  a  mutual  mistake,  within  the  rulings  in  Baker 


12  REFORMATION    OF    INSTRUMENTS.  (Part    3 

V.  Pyatt,  108  Ind.  61,  and  McCasland  v.  Aetna  Life  Ins.  Co.,  108  Ind. 
130,  in  which  what  we  regard  as  the  better  rule  governing  the  sub- 
ject under  consideration   is   enunciated.     .     .     . 

There  is  no  dispute  but  that  the  mortgagee  loaned  the  money, 
the  repayment  of  which  was  secured  by  the  mortgage  in  suit, 
upon  the  express  agreement  that  she  was  to  have  a  mortgage  upon 
the  forty-acre  tract,  as  it  was  called,  upon  which  the  mortgagors 
resided.  Keister  held  the  title  to  the  land  by  two  deeds,  one  from 
Sophia  Lucas  and  her  husband,  which  conveyed  the  undivided  one- 
third,  the  other  from  Sophia  Lucas,  administratrix  of  the  estate  of 
Isaiah  M.  Carter,  conveying  the  undivided  two-thirds.  When  the 
parties  went  to  the  scrivener  to  have  the  mortgage  prepared,  Keister 
took  with  him  the  deed  from  Mrs.  Lucas  and  her  husband,  which 
conveyed  the  undivided  one-third  only,  and  the  scrivener  followed 
the  description  as  it  was  written  in  that  deed. 

The  latter  testified  that  he  read  the  mortgage  over  in  the  hearing 
of  the  parties,  and  that  no  objection  was  made  to  the  description. 
The  mortgagee  accepted  the  mortgage,  and  delivered  the  money  with- 
out having  observed  or  understood  that  the  mortgage  covered  only 
the  undivided  one-third.  She  supposed  that  it  was  made  in  accord- 
ance with  the  agreement.  The  mortgagors  did  not  testify  one  way 
or  the  other. 

The  point  of  the  argument  on  appellants'  behalf  is,  that  the  evi- 
dence entirely  fails  to  show  that  the  mortgagors  w^ere  mistaken.  On 
the  contrary,  it  is  said  the  evidence  shows  that  they  were  not  mistaken, 
but  that  in  delivering  the  mortgage  upon  the  undivided  one-third  of 
the  land  they  did  precisely  what  they  intended. 

This  argimient  proves  too  much,  and,  therefore,  it  proves  nothing. 
Without  denying  that  they  agreed  to  give  a  mortgage  covering  the 
entire  tract,  and  that  they  received  the  mortgagee's  money  with  knowl- 
edge that  she  intended  to  take,  and  supposed  she  was  receiving,  a 
mortgage  corresponding  with  the  agreement,  the  appellants  say  they 
intentionally  delivered  her  a  mortgage  Avhich  only  covered  the  un- 
divided one-third  of  the  land. 

A  party  who  admits  that  an  instrument,  which  a  court  of  equity 
is  asked  to  reform,  does  not  set  forth  the  agreement  as  it  was  actually 
made,  and  as  the  other  party  believed  it  did,  will  not  be  heard  to 
say  that   he   intentionally   brought   about,    or    silently   acquiesced   in, 


Cll.    6)  EEFORMATION    OF    INSTRUMENTS.  13 

discrepancy   between   the   instrument    and    the   agreement    as   made. 
Roszell  V.  Roszell,  109  Ind.  354. 

This  will  be  regarded  as  an  attempt  merely  to  shift  his  position 
from  that  of  one  laboring  under  an  innocent  mistake,  to  that  of  a 
person  deliberately  intending  to  perpetrate  a  fraud.  No  advantage 
can  be  gained  in  a  court  of  conscience  by  attempting  such  a  change. 
A  court  of  equity  will  not  permit  one  party  to  take  advantage  and  en- 
joy the  benefit  of  the  ignorance  or  mistake,  either  of  law  or  fact,  of 
the  other,  which  he  knew  of  and  did  not  correct.  Hollingsworth  v. 
Stone,  90  Ind.  244;  2  Pom.  Eq.  Tur.,  section  847. 


WEBSTER  v.  STARK. 

(Supreme  Court  of  Tennessee,  1882,  78  Tenn.  (10  Lea)  406.) 

Cooper^  J.  .  .  .  The  complainant's  bill  concedes  that  he  en- 
tered into  a  contract  with  defendant  for  two  lots,  being  under  the 
impression  that  the  two  lots  mentioned  in  the  contract  as  Nos.  19  and 
21  covered  the  area  of  lots  17,  19  and  21.  And  the  gravamen  of  his 
complaint  is,  that  he  made  the  contract  believing  that  there  were  only 
two  lots,  and  that  defendant  Stark  also  believed  that  he  was  selling 
him  all  the  ground  covered  by  the  three  lots,  and  through  mistake 
described  the  land  as  lots  19  and  21.  His  deposition  is  that  he  told 
Stark  he  had  come  to  buy  the  Hinkle  mill  lot,  and  the  one  adjoining 
it,  that  he  wanted  the  two  lots  so  that  he  might  have  plenty  of  room. 
He  adds :  "1  bought  the  two  lots  the  mill  was  on,  which  now  by  the 
plat  proves  to  be  17  and  19.  I  bought  them  to  have  the  lots  my  im- 
provements were  on."  The  deposition,  it  will  be  noticed,  does  not 
sustain  the  gravamen  of  the  bill,  but  plainly  admits  that  he  only 
bought  two  lots,  and  insists  that  those  lots  were  17  and  19  instead  of 
19  and  21,  as  inserted  in  the  contract.  Unfortunately  for  this  view, 
the  proof  is  clear  that  he  cleared  off  the  undergrowth,  after  his  pur- 
chase, from  lot  No.  21,  and  offered  to  sell  that  lot  to  two  different 
persons,  asking  an  advance  of  $25  on  the  price  he  had  given,  because 
it  was  a  corner  lot. 

The  testimony  of  the  witness  introduced  by  the  complainant,  who 
says  he  was  present  when  the  contract  was  entered  into  between  the 


14  EEFORMATION   OF   INSTRUMENTS.  (Part    3 

parties,  throws  light  on  the  real  cause  of  the  difficulty.  He  testifies: 
"Webster  told  defendant  Stark  he  wanted  two  lots ;  Stark  asked  him 
which  lots  he  wanted,  and  Webster  said  he  wanted  the  lot  the  mill 
was  on,  and  the  one  next  to  it.  Webster  asked  the  price,  and  Stark 
told  him  $50  apiece."  The  testimony  of  the  complainant,  the  de- 
defendant,  and  the  witness  all  agree  on  the  fact  that  the  complainant 
said  that  he  had  come  to  buy  two  lots,  and  two  lots  were  sold  him. 
The  complainant  and  his  witness  both  agree  also  in  the  fact  that  the 
complainant  said  he  wanted  the  lot  the  mill  was  on  and  the  one  next 
to  it.  It  is  obvious  that  complainant  thought  that  the  mill  was  all  on 
one  lot,  and  he  intended  to  buy  that  lot.  He  also  wanted  the  adjoining 
lot,  which  might  be,  upon  the  supposition  that  the  mill  was  on  No.  19, 
either  lot  No.  21  or  lot  No.  17.  The  contract  specifies  lot  No.  21, 
which  was  a  corner  lot.  The  testimony  of  the  witness  does  not  tend 
to  show  that  lot  No.  21  was  not  the  one  actually  contracted  for. 
Nor  does  the  testimony  of  the  complainant  himself,  when  he  details 
what  took  place  between  him  and  the  defendant  at  the  time  of  the 
trade.  It  is  only  when  he  comes  to  express  his  conclusion  from  what 
was  done,  rather  than  the  facts  themselves,  that  he  diverges  from  the 
other  witnesses.  When  he  says :  "I  bought  the  two  lots  the  mill  was 
on,  which  now  by  the  plat  proves  to  be  Nos.  17  and  19,"  he  is  not 
sustained  by  either  his  bill  or  his  own  statement  of  the  facts.  For 
the  bill  and  the  deposition  both  show  that  he  thought  the  mill  was  on 
one  lot,  and  that  he  wanted  it  and  the  adjoining  lot.  And  other 
evidence,  as  we  have  seen,  shows  that  he  took  possession  of  lot  21, 
cleared  and  offered  to  sell  it. 

The  whole  difficulty  has  been  occasioned  by  the  fact  that  the  mill, 
instead  of  being  on  one  lot  alone,  was  partly  on  two  lots,  17  and  19. 
No  doubt  the  complainant  intended  to  buy  the  land  on  which  the  mill 
was  situated,  and  he  did  buy  the  lot  on  which  he,  and  probably  the 
defendant,  supposed  it  was  entirely  located,  and  on  which  it  was 
principally  located.  If,  under  this  mistake,  he  selected  lot  21  as  the 
adjoining  lot  and  contracted  for  it,  we  see  no  way  in  which  we 
can  correct  the  mistake  by  giving  him  the  other  lot  in  lieu.  The  mis- 
take was  not  in  the  contract,  or  in  the  writing  embodying  the  con- 
tract, but  of  an  extrinsic  fact,  which  fact,  if  known,  would  probably 
have  induced  the  parties  to  make  a  different  contract.  The  mistake, 
such  as  it  was,  was  the  mistake  of  the  complainant,  and  there  is 


Cb.    6)  REFORMATION    OF    INSTRUMENTS.  15 

nothing  to  fix  the  defendant  with   any   fault   in  the  premises.     The 
written  instrument   drawn  up  by  him  embodies  the  contract  of   the 
parties  exactly  as  it  was  entered  into.     There  is  no  ground  for  in- 
terfering with  it  in  any  way. 
Affirm  the  decree  with  costs. 


LEGATE  V.  LEGATE. 

(Supreme  Court  of  Illinois,  1911,  249  111.  359,  94  N.  E.  498.) 

Mr.  Chief  Justice  Vickers  deHvered  the  opinion  of  the  court: 
.  .  .  The  testimony  convinces  us  that  it  was  the  intention  of 
Israel  Legate  to  convey  to  appellant  the  lots  embraced  in  the  Yelton 
deed  in  addition  to  the  other  real  estate  which  he  did,  in  fact,  con- 
vey, and  that  the  lots  were  left  out  of  the  deed  through  a  mistake  of 
the  scrivener.  The  only  legal  question  arising  under  these  facts  is 
whether  there  was  a  valuable  consideration  for  the  conveyance  which 
would  entitle  the  appellant  to  have  the  mistake  corrected  by  a  court 
of  equity.  If  the  grantor  attempted  to  make  a  deed  to  appellant 
without  any  valuable  consideration  and  such  conveyance  was  so  im- 
perfectly executed  as  to  not  accomplish  his  purpose,  a  court  of  equity 
will  not  lend  its  aid  to  make  the  gift  perfect  by  reforming  the  deed. 
Strayer  v.  Dickerson,  205  111.  257. 

Appellee  contends,  and  the  court  below  sustained  his  contention, 
that  the  deed  sought  to  be  reformed  was  voluntary  and  intended  merely 
as  a  gratuity  because  the  evidence  does  not  show  that  there  was  an 
antecedent  contract  to  pay  for  the  services  rendered  to  the  grantor, 
and  that  under  the  existing  circumstances  no  contract  would  be 
implied  by  law.  This  court  has  often  held  that  where  members  of  a 
family  reside  together  and  some  of  them  render  services  for  the 
others,  the  presumption  of  law  is,  arising  from  the  relation,  that  such 
services  are  rendered  gratuitously,  and  that  no  recovery  can  be  had 
for  such  services  without  proving  an  express  contract  or  circum- 
stances from  which  the  law  would  imply  a  contract.  Miller  v.  Miller, 
16  111.  296;  Brush  v.  Blanchard,  18  id.  46;  Faloon  v.  Mclntyre,  118 
id.  292;  Collar  v.  Patterson,  137  id.  403;  Finch  v.  Green,  225  id.  304. 

In  the  case  last  above  cited  the  facts  were  very  similar  to  those  in 
the  case  at  bar.     In  that  case  there  was  an  attempt  to  convey  land  to 


16  REFORMATION    OF    INSTRUMENTS.  (Part    3 

a  member  of  the  family  who  had  rendered  vakiable  services  to  the 
grantor  during  a  long  period  of  serious  illness.  There  was  no  evi- 
dence of  a  prior  express  contract  to  pay  for  such  services.  In  dis- 
cussing that  question,  this  court,  on  page  312,  said:  "The  evidence, 
however,  justifies  an  inference  of  an  express  contract  between  the 
parties  when  the  will  was  made,  or  certainly  at  the  time  of  the  execu- 
tion of  the  deed.  The  deed  was  executed  in  the  presence  of  appel- 
lant and  his  wife,  and  it  is  clear  that  it  was  made  in  consideration 
of  the  services  rendered  and  to  be  rendered  and  the  care  and  trouble 
which  the  grantor  had  caused  to  his  son  and  wife.  The  services  ren- 
dered were  valuable,  and  at  least  after  the  execution  of  the  deed  were 
not  rendered  gratuitously  but  with  an  understanding  that  the  land 
was  to  be  compensation  for  them.  The  services  were  of  such  a  nature 
that  they  could  scarcely  be  measured  in  money,  and  it  was  entirely 
competent  for  David  Finch  to  place  such  a  value  upon  them  as  he 
saw  fit.  His  estimate  of  the  value  of  such  services  would  not  be 
disturbed  if  the  court  should  dififer  with  him  in  judgment,  nor  would 
the  court  enter  into  an  inquiry  as  to  the  adequacy  of  the  considera- 
tion fixed  by  the  parties  themselves." 

Under  the  evidence  in  this  case  it  is  clear  that  Israel  Legate  was 
not  attempting  to  bestow  a  mere  gift  upon  appellant  but  that  he  was 
seeking  to  compensate  her  for  the  valuable  services  she  had  ren- 
dered to  him  and  to  the  family.  Whether  there  had  been  any  pre- 
vious express  contract  or  not,  when  the  deed  was  executed  it  con- 
stituted a  contract,  and  was,  as  we  have  seen,  based  upon  a  valuable 
consideration.  This  is  all  that  the  law  requires  in  order  to  warrant 
a  court  of  equity  in  reforming  a  contract.  Had  there  been  no  attempt 
to  execute  the  deed,  a  bill  for  specific  performance  would  stand  upon 
a  different  footing  from  one  to  reform  an  executed  contract.  Appel- 
lant was  entitled  to  a  reformation  of  this  deed. 


PARTRIDGE  V.  PARTRIDGE. 

(Supreme  Court  of  Missouri,  1909,  220  Mo.  321,  119  S.  W.  415.) 

Gantt,  p.  J.  .  .  .  Conceding  that  the  description  is  defective 
and  uncertain,  the  question  arises  as  to  the  power  of  a  court  of  equity 
to  correct  this  mistake  under  the  facts  in  evidence  in  this  case.     It 


Cb.    6)  REFORMATION    OF     INSTRUMENTS.  17 

is  unquestionably  true  that  a  mere  agreement  to  give  land  will  not 
be  enforced  against  the  donor  upon  proof  alone  of  the  promise  to 
give,  whether  the  promise  be  oral  or  in  writing,  for  the  reason  that 
as  the  obligation  rests  alone  upon  the  promise  of  the  donor,  he  may 
revoke  it,  and  equity  will  not  compel  a  performance.    (Anderson  v. 
Scott,  94  Mo.  62>7;  Brownlee  v.  Fenwick,  103  Mo.  1.  c.  428.)     But 
the  principle  invoked  by  the  defendant  Mrs.  Partridge  in  this  case 
is  that  while  a  court  of  equity  will  not  undertake  to  enforce  a  mere 
gratuity,  yet  where  there  is  a  meritorious  consideration,  as  between 
the  grantor  and  the  grantee,  a  court  of  equity  will  take  cognizance  of 
the  mistake  and  correct  the  same.     Thus,  in  Hutsell  v.  Crewse,  138 
Mo.  1,  it  was  ruled  that  a  deed  made  and  delivered  by  a  parent  to  his 
minor  children  for  the  purpose  of  making  provision  for  such  chil- 
dren has  a  meritorious  consideration  that  entitled  it  to  the  protection 
of  a  court  of  equity.     And  the  deed  having  been  delivered  and  the 
land  being  susceptible  of  identification  aliunde,  the  contract  was  ex- 
ecuted and  the  title  passed.     In  Crawley  v.  Crafton,   193  Mo.  1.  c. 
432,  the  decision  in  Hutsell  v.  Crewse,  supra,  was  reaffirmed.    And  it 
was  explained  that  the  expression  used  in  that  case  to  the  effect  that 
"the  title  passed,"  meant  the  title  in  contemplation   of   a  court  of 
equity  was  passed ;  that  in  such  a  case  the  contract  was  not  purely 
voluntary,  and  the  court  did  not  enforce  the  executory  contract.    That 
the  deed  was  but  the  evidence  of  an  executed  contract  founded  upon 
a  meritorious  consideration  and  the  decree  simply  corrects  the  evi- 
dence of  that  contract  so  as  to  make  it  conform  to  the  contract  as 
actually  made  and  executed,  and  that  the  deed  to  the  wife  was  based 
upon  a  consideration  equally  meritorious  in  the  eye  of  a  court  of 
equity.     And   in   support   of   that   ruling  this   court   cited  2    Story's 
Equity  (13th  Ed.),  793b;  Adams'  Equity  (8  Ed.),  pages  97  and  98, 
which  fully  sustained  the  decision  of  the  court  in  that  case.    The  evi- 
dence in  this  case  leaves  no  doubt  that  James  M.  Partridge,  recognizing 
his  obligation  to  his  wife  and  having  no  other  property  than  this  one- 
third  of  this  eighty  acres  of  land,  sought  to  make  a  slight  provision 
for  her  support  in  case  of  his  death,  and  the  case  is  brought  clearly 
within  the  principle  of   the  authorities   above  cited.     We  think  the 
evidence  fully  justified  the  decree  of  the  court  and  upon  the  clearest 
principles  of  equity,  the  description   of   the  property  ought  to  have 
been  and  was  properly  corrected,  and  when  so  corrected,  it  is  evi- 


18  EEFORMATION    OF    INSTRUMENTS.  (Part    3 

dent  that  the  plaintiffs  had  no  title  in  equity  and  justice  to  any  portion 
of  this  land,  and  the  decree  dismissing  their  bill  was  proper,  and  it 
is  accordingly  affirmed. 


PITCHER  V.  HENNESSEY. 

(New  York  Court  of  Appeals,  1872,  48  N.  Y.  415.) 

Earl,  C.     ...     On  the  trial  the  defendant  claimed  that,  by  the 
terms  of  the  written  agreement,  the  risk  in  question  was  assumed  by 
the  plaintiff;  and  that  if  this  was  not  the  true  construction  of  the 
written  agreement,  then  it  did  not  express  the  intention  of  the  par- 
ties, and  should  be  reformed.     After  the  court  had  held  that  this 
risk  under  the   written  contract   was   not   assumed   by  the   plaintiff, 
and  rested  upon  the  defendant,  the  defendant;   (1)    for  the  purpose 
of  procuring  a  reformation  of  the  contract;  and   (2)   to  explain  any 
ambiguity  there  might  be  upon  the   face   of   said  contract,   and  the 
meaning  of  the  words  "risks  of   navigation,"  as  understood  by  the 
parties,  offered  to  prove  "conversations   which  took  place  between 
the  plaintiff  and  defendant  before  the  execution  of  the  written  con- 
tract between  the  parties  which  has  been  given  in  evidence.     That 
in  such  conversations  the  defendant  desired  the  plaintiff  to   furnish 
men  and  teams  at  Rome  to  assist  in  getting  boat  and  cargo  to  Mar- 
tinsburgh,  where  plaintiff  wanted  the  wheat.     The  defendant  told  the 
plaintiff  he  knew  nothing  of  the  Black  River  canal  or  the  size  of 
its  locks,  and  inquired  of   Mr.   Pitcher  if   he  knew  the   size  of   the 
locks,  and  said  to  him  that  he,  Hennessey,  would  take  no  risk  as  to 
the  length  of  the  locks  or  the  freezing  up  of  the  canal,  and  that  plain- 
tiff said  he  would  take  those  risks."     .     .     . 

Parties  to  an  agreement  may  be  mistaken  as  to  some  ma- 
terial fact  connected  therewith,  which  formed  the  consideration  thereof 
or  inducement  thereto,  on  the  one  side  or  the  other ;  or  they  may  sim- 
ply make  a  mistake  in  reducing  their  agreement  to  writing.  In  the 
former  case,  before  the  agreement  can  be  reformed,  it  must  be  shown 
that  the  mistake  is  one  of  fact,  and  mutual ;  in  the  latter  case  it  may 
be  a  mistake  of  the  draftsman,  or  one  party  only,  and  it  may  be  a 
mistake  of  law  or  of  fact.     Equity  interferes,  in  such  a  case,  to  com- 


(^II.    6)  REFORMATIOX    OF     INSTRUMENTS.  19 

pel  the  parties  to  execute  the  agreement  which  they  have  actually 
made.  Sometimes  it  happens  that  parties  agree,  as  in  the  case  above 
cited  from  Peters  (Hunt  v.  Rousmaniere)  to  carry  out  their  agree- 
ment by  an  instrument  which,  by  their  mistake  of  the  law,  will  not 
effectuate  their  intention.  In  such  a  case  equity  will  not  reform  the 
instrument,  or  substitute  another  instrument  which  will,  in  law, 
give  effect  to  their  intention,  because  they  adopted  and  agreed  upon 
the  particular  instrument,  and  equity  will  not  compel  them  to  execute 
an  agreement  which  they  never  agreed  to  execute,  and  thus  make  an 
agreement  for  them.  But  in  this  case  the  parties  intended,  accord- 
ing to  the  answer,  to  reduce  their  parol  agreement  to  writing,  and 
to  embody  it  in  the  instrument ;  and  either  because  they  or  their 
draftsman  did  not  understand  the  force  of  language,  or  because  some 
language  which  they  intended  should  have  been  inserted  in  the  instru- 
ment was  omitted  by  mistake,  their  intention  was  not  carried  into 
effect,  and  the  instrument  failed  to  embody  their  agreement. 

It  is  claimed  on  the  part  of  the  plaintiff  that  if  the  mistake  oc- 
curred because  both  parties  misunderstood  the  meaning  of  the  terms 
"risk  of  navigation,"  both  parties  believing  that  these  terms  would 
include  the  risk  in  question,  then  no  reformation  of  the  contract  can 
be  had.  This  claim  is  not  well  founded.  When  parties  have  made  an 
agreement,  and  there  is  no  allegation  of  any  mistake  in  it,  and  in 
reducing  it  to  writing,  they,  by  mistake,  either  because  they  did  not 
understand  the  meaning  of  the  words  used,  or  their  legal  effect, 
failed  to  embody  their  intention  in  the  instrument,  equity  will  grant 
relief  by  reforming  the  instrument,  and  compelling  the  parties  to 
execute  and  perform  their  agreement  as  they  made  it ;  and  it  matters 
not  whether  such  a  mistake  be  called  one  of  law  or  of  fact.  (Oliver 
V.  The  Mutual  Commercial  Ins.  Co.,  2  Curtis,  277). 

Hence  I  conclude  that  the  learned  judge  at  the  circuit  erred  in 
excluding  proof  of  the  alleged  mistake,  and  in  holding  that  the  equi- 
table defense  could  not  be  litigated  at  the  trial.  I  therefore  favor  a 
reversal  of  the  judgments,  and  a  new  trial,  costs  to  abide  event. 


STAFFORD  v.  FETTERS. 

(Supreme  Court  of  Iowa,   1881,  55   Iowa  484.) 

Beck,  J.     1.  The  defendant,  being  the  payee  of  ^  negotiable  promis- 
sory note,  transferred  it  to  plaintiff  by  the  following  indorsement : 


20  EEFOEMATION    OF   INSTRUMENTS.  (Part    ?> 

"For  value  received  I  assign  the  within  note  to  James  Stafford. 

(Signed)  H.  J.  Fetters." 

.  The  action  was  brought  at  law  upon  this  indorsement.  The  de- 
fendant pleaded  an  equitable  defense,  wherein  he  substantially  alleged 
that  by  the  agreement  under  which  the  note  was  transferred  the  plain- 
tiff was  to  take  the  note  without  -recourse  upon  defendant,  and  that 
the  parties  adopted  the  form  of  transfer  as  expressing  such  agree- 
ment, and  neither  of  them  at  the  time  intended  that  it  should  have  any 
other  effect  than  to  express  the  agreement  between  them,  and  neither 
knew  that  it  did  have  the  effect  which  the  law  gives  to  such  instruments. 
Defendant  upon  this  answer,  as  in  a  cross-bill,  prays  that  the  indorse- 
ment be  reformed  so  as  to  express  the  true  agreement  made  and  in- 
tended to  be  set  out  by  the  parties,  and  that  other  proper  relief  be  grant- 
ed. A  demurrer  to  this  count  of  the  answer  was  overruled,  and  the 
issues  raised  by  this  pleading  were  tried  as  an  action  in  chancery.     ,     . 

But  there  is  another  familiar  rule  of  equity  upon  which  plaintiff 
relies  to  defeat  the  application  of  these  doctrines  to  this  case,  namely, 
relief  will  not  be  granted  to  correct  mistakes  of  law.  The  rule  has 
no  application  to  mistakes  in  the  language  of  a  contract,  or  in  the  choice 
of  the  form  of  an  instrument  whereby  it  has  an  effect  different  from 
the  intention  of  the  parties.  If  the  parties  intending  to  sell  and  pur- 
chase lands  should  in  ignorance  of  its  legal  effect  execute  a  lease,  equity 
would  reform  the  instrument,  though  it  was  a  mistake  of  law  which 
led  them  to  adopt  it.  This  mistake,  it  will  be  noticed,  affects  the  very 
contract  the  parties  intended.  They  intended  a  deed,  but  a  lease  was 
made.  But  where  two  are  bound  by  a  bond,  and  the  obligee  releases 
one,  mistakingly  believing  that  the  other  will  remain  bound,  equity  will 
not  grant  him  relief,  for  the  reason  that  the  release  is  just  what  he 
intended  it  to  be ;  his  mistake  related  to  the  effect  of  the  contract  in 
matters  not  contemplated  therein.  The  mistakes  of  law  against  which 
equity  will  not  relieve  are  those  which  pertain  to  the  subject  of  the 
contract,  and  were  inducements  thereto,  or  considerations  therefor.  In 
such  cases  the  parties  intended  to  make  the  very  contracts  which  they 
executed,  but  were  induced  to  make  them  by  a  mistake  of  law.  Further 
illustrations  taken  from  the  books  make  our  expression  of  the  rule 

plainer. 

A  tenant  for  life  purchased  a  reversion  under  the  mistake  of  law 
that  such  purchase  would  cut  off  the  remainder  in  tail  and  vest  the  fee 


Cll.    6)  KEFORMATIOX    OF    INSTRUMENTS.  21 

in  him.  It  was  held  that  he  could  not  have  relief.  A  power  of  attorney 
was  taken  from  a  debtor  as  a  security ;  but  the  debtor  died  before  the 
power  was  executed.  Equity  would  not  grant  relief.  In  each  of 
these  cases  the  very  contracts  entered  into  by  the  parties  were  embodied 
in  the  instruments.  The  mistakes  were  as  to  the  results  to  be  reached 
which  were  inducements  to  the  contracts.  In  the  first  case  the  pur- 
chaser supposed  that  the  acquisition  of  the  reversion  would  vest  in  him 
the  fee  simple  title.  This  was  the  inducement  for  the  purchase.  It 
was  a  mistake  of  law.  In  the  second  case  it  was  the  purpose  of  the 
parties  to  secure  the  payment  of  the  debt.  They  mistakenly  chose  a 
power  of  attorney  to  effect  their  object.  But  their  purpose  was  de- 
feated by  the  law  which  provides  that  the  death  of  the  grantor  revokes 
a  power  of  attorney.  In  these  cases  it  will  be  observed  the  instruments 
were  of  the  character  intended  by  the  parties.  The  mistakes  pertained 
to  the  effect  of  the  instruments  upon  the  rights  of  the  parties,  not  con- 
templated by  the  contracts  or  provided  for  therein. 

But,  on  the  other  hand,  when  parties  enter  into  an  agreement  which, 
through  mistake  of  law  or  fact,  they  reduce  to  writing  and  the  in- 
strument fails  to  express  their  true  agreement,  or  omits  stipulations 
agreed  upon,  or  contains  terms  contrary  to  the  intention  of  the  parties, 
equity  will  reform  the  writing,  making  it  conform  to  the  agreement 
entered  into  by  the   parties.     .     .     . 

In  the  case  before  us  the  parties  agreed  that  plaintiff  should 
take  the  note  without  recourse  on  defendant.  They  mistakenly  sup- 
posed that  the  form  of  assignment  of  the  note  would  have  that  effect, 
being  ignorant  of  the  provisions  of  the  law  of  commercial  paper  which 
makes  the  indorser  liable  in  case  of  default  of  the  maker  of  the  note. 
This  was  a  mistake  of  law,  but  it  pertained  to  the  instrument  itself, 
and  by  reason  of  it  the  writing  does  not  express  the  true  agreement 
of  the  parties.     Equity  will  reform  it. 


PARK  BROS.  &  CO.,  LIMITED,  v.  BLODGETT  &  CLAPP  CO. 

(Supreme  Court  of  Connecticut,  1894,  64  Conn.  28,  29  Atl.  133.) 

Torrance,  1.     .     .     .     The  finding  of  the  court  below  is  as  follows: 
"The  actual  agreement  between  the  defendant  and  the  plaintiff  was 


22  REFORMATION    OF    INSTR.UMENTS.  (Pai't    3 

that  the  plaintiff  should  .supply  the  defendant,  prior  to  January  1st, 
1890,  with  such  an  amount  of  tool  steel,  not  exceeding  fifteen  tons,  as 
the  defendant's  wants  during  that  time  might  require,  and  of  the  kinds 
and  upon  the  terms  stated  in  said  contract,  and  that  the  defendant 
would  purchase  the  same  of  the  plaintiff  on  said  terms.  But  by  the 
mutual  mistake  of  said  Church  and  said  Clapp,  acting  for  the  plaintiff 
and  defendant  respectively,  concerning  the  legal  construction  of  the 
written  contract  of  December  14th,  1888,  that  contract  failed  to 
express  the  actual  agreement  of  the  parties ;  and  that  said  Church  and 
said  Clapp  both  intended  to  have  the  said  written  contract  express  the 
actual  agreement  made  by  them,  and  at  the  time  of  its  execution  be- 
lieved that  it  did."  No  fraud  is  properly  charged,  and  certainly  none 
is  found,  and  whatever  claim  to  relief  the  defendant  may  have  must 
rest  wholly  on  the  ground  of  mistake.  The  plaintiff  claims  that  the 
mistake  in  question  is  one  of  law  and  is  of  such  a  nature  that  it  cannot 
be  corrected  in  a  court  of  equity. 

That  a  court  of  equity  under  certain  circumstances  may  reform  a 
written  instrument  founded  on  a  mistake  of  fact  is  not  disputed;  but 
the  plaintiff  strenuously  insists  that  it  cannot,  or  will  not,  reform  an 
instrument  founded  upon  a  mistake  like  the  one  here  in  question  which 
is  alleged  to  be  a  mistake  of  law.  The  distinction  between  mistakes 
of  law  and  mistakes  of  fact  is  certainly  recognized  in  the  text  books 
and  decisions,  and  to  a  certain  extent  is  a  valid  distinction;  but  it  is 
not  practically  so  important  as  it  is  often  represented  to  be.  Upon 
this  point  Mr.  Markby,  in  his  "Elements  of  Law,"  section  268  and  269, 
well  says :  "There  is  also  a  peculiar  class  of  cases  in  which  courts  of 
equity  have  endeavored  to  undo  what  has  been  done  under  the  in- 
fluence of  "error  and  to  restore  parties  to  their  former  positions.  The 
courts  deal  with  such  cases  in  a  very  free  manner,  and  I  doubt  whether 
it  is  possible  to  bring  their  action  under  any  fixed  rules.  But  here 
again,  as  far  as  I  can  judge  by  what  I  find  in  the  text  books,  and  in 
the  cases  referred  to,  the  distinction  between  errors  of  law  and  errors 
of  fact,  though  very  emphatically  announced,  has  had  very  little  prac- 
tical effect  upon  the  decisions  of  the  courts.  The  distinction  is  not  ig- 
nored, and  it  may  have  had  some  influence,  but  it  is  always  mixed  up 
with  other  considerations  which  not  infrequently  outweigh  it.  The  dis- 
tinction between  errors  of  law  and  errors  of  fact  is  therefore  probably 
of  much  less  importance  than  is  commonly  supposed.  There  is  some 


Ch.    6)  KEFORMATIOX    OF     IXS'TRUMEXTS.  23 

satisfaction  in  this  because  the  grounds  upon  which  the  distinction  is 
made  have  never  been  clearly  stated." 

The  distinction  in  question  can  therefore  afford  Httle  or  no  aid  in 
determining  the  question  under  consideration.  Under  certain  cir- 
cumstances a  court  of  equity  will,  and  under  others  it  will  not,  reform 
a  writing  founded  on  a  mistake  of  fact ;  under  certain  circumstances 
it  will,  and  under  others  it  will  not,  reform  an  instrument  founded  up- 
on a  mistake  of  law.  It  is  no  longer  true,  if  it  ever  was,  that  a  mis- 
take of  law  is  no  ground  for  relief  in  any  case,  as  will  be  seen  by  the 
cases  hereinafter  cited.  Whether,  then,  the  mistake  now  in  question 
be  regarded  as  one  of  law  or  one  of  fact  is  not  of  much  consequence ; 
the  more  important  question  is  whether  it  is  such  a  mistake  as  a  court 
of  equity  will  correct ;  and  this  perhaps  can  only  or  at  least  can  best 
be  determined  by  seeing  whether  it  falls  within  any  of  the  well  recog- 
nized classes  of  cases  in  which  'such  relief  is  furnished.  At  the  same 
time  the  fundamental  equitable  principle  which  was  specially  applied 
in  the  case  of  Northrop  v.  Graves,  19  Conn.,  548,  may  also,  perhaps, 
afford  some  aid  in  coming  to  a  right  conclusion.  Stated  briefly  and 
generally,  and  without  any  attempt  at  strict  accuracy,  that  principle  is, 
that  in  legal  transactions  no  one  shall  be  allowed  to  enrich  himself  un- 
justly at  the  expense  of  another,  through  or  by  reason  of  an  innocent 
mistake  of  law  or  fact  entertained  without  negligence  by  the  loser,  or 
by  both.  If  we  apply  this  principle  to  the  present  case,  we  see  that  by 
means  of  a  mutual  mistake  in  reducing  the  oral  agreement  to  writing 
the  plaintiff,  without  either  party  intending  it,  gained  a  decided  ad- 
vantage over  the  defendant  to  which  it  is  in  no  way  justly  entitled  or 
at  least  ought  not  to  be  entitled  in  a  court  of  equity. 

The  written  agreement  certainly  fails  to  express  the  real  agreement 
of  the  parties  in  a  material  point ;  it  fails  to  do  so  by  reason  of  a  mutual 
mistake,  made,  as  we  must  assume,  innocently  and  without  any  such 
negligence  on  the  part  of  the  defendant  as  would  debar  him  from  the 
aid  of  a  court  of  equity ;  the  rights  of  no  third  parties  have  intervened ; 
the  instrument  if  corrected  will  place  both  parties  just  where  they  in- 
tended to  place  themselves  in  their  relations  to  each  other;  and  if  not 
corrected  it  gives  the  ])laintiff  an  inequitable  advantage  over  the  de- 
fendant. It  is  said  that  if  by  mistake  words  are  inserted  in  a  written 
contract  which  the  parties  did  not  intend  to  insert,  or  omitted  which 
they  did  not  intend  to  omit,  this  is  a  mistake  of  fact  which  a  court  of 


24  REFORMATION    OF    INSTRUMENTS.  (Part    3 

equity  will  correct  in  a  proper  case.  vSibert  v.  McAvoy,  15  111.,  106. 
If  then  the  oral  agreement  in  the  case  at  bar  had  been  for  the  sale  and 
purchase  of  five  tons  of  steel,  and  in  reducing  the  contract  to  writing, 
the  parties  had  by  an  unnoticed  mistake  inserted  "fifteen  tons"  in- 
stead of  "five  tons,"  this  would  have  been  mistake  of  fact  entitling  the 
defendant  to  the  aid  of  a  court  of  equity.  In  the  case  at  bar  the  parties 
actually  agreed  upon  what  may,  for  brevity,  be  called  a  conditional 
purchase  and  sale,  and  upon  that  only.  In  reducing  the  contract  to 
writing  they,  by  an  innocent  mistake,  omitted  words  which  would  have 
expressed  the  true  agreement  and  used  words  which  express  an  agree- 
ment differing  materially  from  the  only  one  they  made.  There  is 
perhaps  a  distinction  between  the  supposed  case  and  the  actual  case, 
but  it  is  quite  shadowy.  They  differ  not  at  all  in  their  unjust  con- 
sequences. In  both,  by  an  innocent  mistake  mutually  entertained,  the 
vendor  obtains  an  unconscionable  advantage  over  the  vendee,  a  result 
which  was  not  intended  by  either.  There  exists  no  good  substantial 
reason  as  it  seems  to  us  why  relief  should  be  given  in  the  one  case  and 

refused  in  the  other,  other  things  equal 

Upon  principle  then  we  think  a  court  of  equity  may  correct 
a  mistake  of  law  in  a  case  like  the  one  at  bar,  and  we  also  think  the 
very  great  weight  of  modern  authority  is  in  favor  of  that  conclusion. 


MACOMBER  v.  PECKHAM. 

(Supreme  Court  of  Rhode  Island,  1889,  16  R.  I.  485,  17  Atl.  910.) 

In  this  case  the  oral  testimony  is  offered  to  show  that  the  defendant 
agreed  by  word  of  mouth  to  sell  and  the  complainant  to  purchase  a 
certain  tract  of  land,  and  that,  in  consequence  of  a  mutual  mistake,  the 
agreement  as  reduced  to  writing  and  signed  did  not  include  the  whole 
of  it ;  and  the  question  is  whether  the  testimony  is  admissible  to  show 
this,  in  order  that  the  contract  may  be  reformed  so  as  to  include  the 
land  omitted,  and  be  specifically  enforced  as  reformed.  We  think 
it  is  not  admissible  for  these  purposes  both  on  reason  and  the  greater 
weight  of  authority.  The  court,  if  it  were  to  receive  the  testimony  and 
use  it  as  proposed,  would  virtually  substitute  the  original  oral  agree- 
ment for  the  written  contract,  and  enforce  it  in  spite  of  the  statute, 
which  declares  that  no  action  shall  be  brought  to  charge  any  person 


Cll.    6)  REFORMATION    OF     INSTRUMENTS.  25 

on  an}'  such  agreement.     What  right  has  the  court  to  do  this?     It  is 
argued  that  the  statute  was  not  intended  to  abridge  the  ordinary  chan- 
cery jurisdiction  in  matters  of  mistake.     But  why  not,  if  the  language 
imports  that  it  was?     W'e  have  not  found  this  question  answered  in 
any  of  the  cases.    The  great  names  of  Kent  and  Story  are  invoked  in 
support  of  the  jurisdiction.     Kent  and  Story  say  there  is  no  reason 
why  oral  testimony  should  not  be  received  as  readily  when  offered  by 
the  complainant  to  reform  the  written  contract,  and  enforce  it  when 
reformed,  as  when  offered  by  the  defendant  to  defeat  its  enforcement. 
This  may  be  so  when  the  written  contract  is  not  within  the  statute  of 
frauds ;  but  when  the  contract  is  within  the  statute  the  difference  be- 
tween receiving  oral  testimony,  when  offered  for  the  purpose  of  vary- 
ing the  contract  and  enforcing  it  as  varied,  and  receiving  it,  when 
offered  for  the  purpose  of  showing  that  the  contract  as  written  is  not 
what  was  agreed  to  and  defeating  the  enforcement,  is  the  difference 
between  doing  what  is  forbidden  by  the  statute  and  doing  what  is  not 
forbidden,  as  was  clearly  explained  in  CHnan  v.  Cooke,  supra,  and  as 
has  been  recognized  by  Story  himself.     2  Story,  Eq.  Jur.,  sec.  770. 
The  remarks  of  Kent  and  Story  seem  to  have  been  directed  against  the 
doctrine  of  the  English  chancery  courts,  which,  as  we  have  seen,  is 
applied  to  all  written  contracts,  whether  within  the  statute  or  not,  and 
it  does  not  appear  that  in  making  them  they  gave  thought  to  the  dis- 
tinction enacted  by  the  statute. 

It  is  said  that  it  is  hard  for  the  complaining  party  not  to  have,  on 
proof  of  the  mistake,  the  same  relief  which  he  could  have  had  if  no 
mistake  had  occurred.  Doubtless  this  is  true,  but  it  would  also  have 
been  hard  for  him  not  to  have  had  the  original  oral  agreement  specif- 
ically enforced,  without  any  attempt  to  put  it  in  writing,  if  relying  on 
the  honor  of  the  person  with  whom  he  agreed,  he  had  implicitly  trusted 
that  it  would  be  carried  out,  and  had  been  deceived.  There  would  have 
been  disappointment  in  both  cases,  but  nothing  more  than  disappoint- 
ment in  cither,  unless,  in  consequence  of  his  trust,  he  had  changed  his 
situation  for  the  worse,  and  this  he  might  have  done  in  either  case. 
Such  disappointments  are  the  natural  effect  of  the  statute.  The  purpose 
of  the  statute  is  to  avoid  the  frauds  and  perjuries,  the  uncertain  and 
erroneous  recollections,  and  the  misunderstandings,  which  are  in- 
cident to  unwritten  contracts  by  making  them  incapable  of  enforce- 
ment; and  therefore,  when   a  court   receives  oral  testimony    for  the 


2G  EEFOBMATION    OF    INSTRUMENTS.  (Part    3 

purpose  of  showing  that,  by  reason  of  mutual  mistake,  the  contract, 
as  reduced  to  writing  is  not  the  contract  agreed  upon  by  word  of  mouth, 
and  of  having  the  latter  enforced  upon  proof  thereof,  it,  to  that  ex- 
tent, invites  the  evils  which  the  statute  was  intended  to  suppress.  The 
complainant  contends  that  the  testimony  should  be  received  -because 
it  will  show  that  the  contract  can  be  reformed,  as  he  desired  to  have 
it  reformed,  by  striking  out  certain  words  in  it  as  well  as  by  adding 
others  to  it.  We  think,  how^ever  that,  if  the  efifect  of  the  change  is  to 
enlarge  the  scope  of  operation  of  the  contract,  it  does  not  matter  wheth- 
er the  change  is  made  by  striking  out  words  or  adding  them ;  for,  in 
either  case,  the  contract  will  not  be  the  contract  which  the  defendant 
signed,  and  will  be  more  burdensome  to  him.  Our  conclusion  is  that 
the  oral  testimony  is  not  admissible  for  the  purpose  for  which  it  was 
offered. 


NOEL'S  EX'R  v.  GILL. 

(Supreme  Court  of  Kentucky,  1886,  84  Ky.  241,  S.  W.  428.) 

Judge  Bennett.  .  .  .  The  proof  is  also  clear  that  appellant  in- 
tended to,  and  did  sell  to  said  company,  all  of  the  lots  on  which  its 
road-bed  was  constructed,  in  whole  or  in  part,  but  no  more.  It  is 
also  clear  that  the  deed  made  by  appellant  to  said  company  does  not 
embrace,  by  mistake  in  the  draftsman,  all  of  the  lots  sold.  This  mis- 
take evidently  grew  out  of  the  fact  that  neither  party  knew  the  identity 
or  quantity  of  the  property  sold. 

The  lower  court,  upon  these  facts,  attempted  to  reform  the  deed,  so 
as  to  make  it  conform  to  the  terms  of  the  contract  made  between  these 
parties,  by  decreeing  that  appellee,  the  Louisville  &  Nashville  Railroad 
Company  was  entitled  to  the  four  lots,  Nos.  6,  7,  8  and  9. 

Appellant  has  appealed  from  that  judgment.  The  first  question  pre- 
sented is,  had  the  court  the  power  to  reform  the  deed,  and  make  it 
conform  to  the  terms  of  the  contract?  That  question  being  decided 
affirmatively,  the  second  question  is,  did  the  lower  court  reform  the 
deed  on  equitable  principles  to  both  parties? 

All  mistakes  occurring  in  agreements,  executed  or  executory,  relate 
either,  first,  to  the  terms  of  the  contract,  or,  second,  to  the  subject- 
matter  of  the  contract.    The  terms  of  the  contract  may  be  stated  ac- 


Cll.    6)  KEFORMATIOX    OF     INSTRUMENTS.  27 

cording  to  the  intention  of  the  parties,  but  there  is  an  error  of  one  or 
both  in  reference  to  the  property  to  which  the  terms  apply — such  as  a 
mistake  in  reference  to  its  identity,  situation,  boundaries,  title,  quantity 
or  value. 

Here  the  terms  of  the  contract  were,  the  sale  to  appellee's  vendor 
of  all  the  lots  owned  by  appellant,  on  the  north  side  of  Main  Cross 
street,  over  which  the  road-bed  was  constructed  in  whole  or  in  part. 
The  mistake  occurred  in  reference  to  the  identity,  location  and  number 
of  lots  included  in  the  terms  of  sale. 

The  appellant's  attorney  suggests  that,  although  the  mistake  may 
exist  as  to  the  subject-matter  of  the  contract,  yet  as  the  statute  of  frauds 
requires  the  contract  to  be  in  writing,  parol  evidence  can  not  be  heard 
to  correct  the  mistake,  because  that  would  be  virtually  making  a  con- 
tract by  parol  evidence  that  the  statute  of  frauds  required  to  be  in 
writing. 

The  courts  of  a  few  of  the  States  have  held  that  contracts  required 
by  the  statute  of  frauds  to  be  in  writing  could  only  be  corrected  in  the 
single  instance  of  a  mistake  in  reference  to  the  subject-matter  of  the 
contract,  where  the  error  consisted  in  including  more,  for  instance, 
land,  in  the  written  contract,  than  the  parties  intended,  in  which  case 
parol  evidence  might  be  used  to  show  that  the  surplus  should  be  omitted 
or  eliminated  from  the  contract  as  written,  and  confine  the  operation 
of  the  contract  to  the  remaining  subject-matter  mentioned  in  it,  and 
to  which  the  parties  intended  the  contract  to  apply.  The  reason  assign- 
ed for  thus  limiting  the  reformation  of  a  contract  required  by  the 
statute  of  frauds  to  be  in  writting  is,  that  parol  evidence  in  that  case 
does  not  conflict  with  the  statute  of  frauds,  since  the  relief  does  not 
make  a  parol  contract  required  by  the  statute  of  frauds  to  be  in  writing 
but  simply  narrows  a  written  one  already  made. 

The  courts  of  the  States  that  have  put  the  most  stress  on  this  doc- 
trine had  no  general  equity  jurisdiction,  but  only  such  limited  equity 
jurisdiction  as  the  statutes  of  the  State  conferred  upon  them.  This 
view  of  the  question,  therefore,  grew  out  of  that  fact,  A  few  other 
States,  however,  with  general  equity  jurisdiction,  followed  in  the  same 
line  of  thought. 

On  the  other  hand,  the  courts  of  a  large  majority  of  the  States  have 
held  that  contracts  required  by  the  statute  of  frauds  to  be  in  writing 
may  be  reformed  by  courts  of  equity,  so  as  to  enlarge  or  restrict  the 


28  REFORMATION   OF    INSTE,UMENTS.  iPai't    3 

terms  or  the  subject-matter  of  the  contract  whenever  it  is  clearly  shown 
that  the  written  contract,  by  fraud  or  mistake,  does  not  embrace  either 
the  terms  or  the  subject-matter  of  the  contract,  as  it  was  intended  and 
understood  by  the  parties  to  it. 

The  courts  of  equity  go  upon  the  ground  that  the  statute  of  frauds 
is  no  real  obstacle  in  the  way  of  administering  equitable  relief,  so  as 
to  promote  justice  and  prevent  wrong.  They  do  not  overrule  the 
statute,  but,  to  prevent  fraud  or  mistake,  confer  remedial  rights  which 
are  not  within  the  statutory  prohibition.  In  respect  to  such  needful 
remedies,  the  statute  as  to  them  "is  uplifted."  It  has  also  been  said, 
that  in  case  of  a  written  conveyance  of  land,  which  does  not  convey  as 
much  land  as  was  agreed,  or  dififerent  or  more  land  than  was  intended 
by  the  parties,  the  court  will  fasten  a  personal  obligation  upon  the  party 
benefited  by  the  mistake  to  correct  it,  upon  the  ground  that  he  was 
holding  the  property  as  trustee. 

Whether  the  parol  evidence  offered  to  correct  the  writing  on  ac- 
count of  fraud  or  mistake  shows  the  verbal  contract  to  be  broader  than 
the  written  instrument — covering  more  or  a  different  subject-matter, 
or  enlarging  the  terms — or  is  narrower  than  the  written  instrument, 
either  in  the  terms  or  subject-matter  of  the  contract,  courts  of  equity 
will  grant  relief  by  reforming  the  contract,  so  as  to  prevent  fraud  or 
mistake.  The  statute  of  frauds,  in  granting  such  relief,  is  not  violated, 
but  is  "uplifted,"  that  it  may  not  perpetrate  the  fraud  that  the  Legis- 
lature designed  it  to  prevent.     . 

We  think  the  court  did  right  in  reforming  the  deed  to  make 
it  conform  to  the  contract  of  the  parties. 


SHERWOOD  V.  SHERWOOD. 

(Supreme  Court  of  Wisconsin,  1878,  45  Wis.  357.) 

Lyon,  J.  .  .  .  1.  An  extended  examination  of  the  cases  and 
authorities  bearing  on  the  question,  not  only  those  cited  by  both  of  the 
learned  counsel,  but  many  others  not  cited,  has  satisfied  us  that  it  is 
not  a  proper  exercise  of  the  powers  of  a  court  of  equity  to  reform  a 
will  by  adding  provisions  thereto  to  make  the  will  accord  with  the  real 
intentions  of  the  testator. 


Cll.    6)  EEFORMATIOX    OF     IXSTRUMEXTS.  29 

We  have  seen  but  a  single  case  in  which  a  court  has  assumed  to 
correct  a  mistake  in  a  will.  That  is  the  case  of  Wood  v.  White,  32  Me., 
340.  The  will  contained  this  bequest :  "I  give  to  J.  Wood,  of  Belfast, 
the  whole  amount,  principal  and  interest,  he  may  owe  me  at  the  time 
of  my  decease,  which  is  secured  to  me  by  mortgage,"  etc.  The  facts 
were,  that  no  person  named  J.  Wood  owed  the  testator,  or  ever  had 
any  dealings  with  him.  or  claimed  the  legacy.  The  complainant,  George 
Wood,  of  Belfast,  was  married  to  the  testator's  niece,  was  his  warm 
personal  friend,  and  owed  him  a  debt  secured  by  mortgage.  The  exec- 
utors, who  were  the  defendants  in  the  action,  answered  admitting 
that  the  testator  intended  George  instead  of  J.  Wood,  and  did  not  con- 
test the  action.  Besides,  it  appeared  that  the  testator,  when  abroad, 
had  addressed  letters  to  the  complainant  by  the  name  of  J.  Wood.  On 
these  facts  the  courts  decreed  that  the  will  be  corrected.  The  opinion 
contains  neither  argument  nor  reference  to  authority,  and  the  case  cited 
to  support  the  decree  do  not  support  it.  The  case  was  a  proper  one 
for  construing  the  will  as  containing  a  legacy  to  George  Wood ;  but 
the  decision  is  of  little  value  as  authority  for  reforming  wills. 

Judge  Story  says,  in  a  general  way.  that  courts  of  equity  have  juris- 
diction to  correct  wills ;  but  it  is  apparent  from  his  discussion  of  the 
subject  and  the  cases  which  he  cites,  that  he  does  not  mean  that  the 
court  will  reform  and  change  the  language  of  a  will,  but  that  it  will 
carry  out  the  intention  of  the  testator  in  a  proper  case  by  giving  con- 
struction to  the  words  of  the  will  in  accordance  with  such  intention. 
He  says:  "In  regard  to  mistakes  in  wills,  there  is  no  doubt  that  courts 
of  equity  have  jurisdiction  to  correct  them  when  they  are  apparent  on 
the  face  of  the  will,  or  may  be  made  out  by  a  due  construction  of  its 
terms;  for  in  cases  of  wills  the  intention  will  prevail  over  the  words. 
"But  then  the  mistake  must  be  apparent  on  the  face  of  the  w^ill,  other- 
wise there  can  be  no  relief."     .     .     • 

The  reason  why  courts  of  equity  will  not  interfere  in  such 
cases  seems  to  be.  that  an  action  to  reform  a  written  instrument  is  in  the 
nature  of  an  action  for  specific  performance,  and  the  making  of  a  will 
being  a  voluntary  act.  there  is  no  consideration,  as  in  actions  to  reform 
deeds  or  contracts,  to  support  the  action.  Hence  it  is  said  in  a  note  by 
the  editor  of  Wigram's  treatise  on  extrinsic  evidence  in  aid  of  wills, 
that  "volunteers  under  wills  have  no  e(|uity  whereon  to  found  a  suit 
for  specific  performance."     O'Hara's  2d  Am.  ed.  47. 


30  EEFORMATION    OF    INSTRUMENTS.  (Part    3 

There  is  another  reason  why  a  court  of  equity  should  not  reform  a 
will  by  correcting  a  mistake  therein,  after  the  will  has  been  admitted  to 
probate.  Such  probate  is  the  judgment  of  the  court  that  the  instrument, 
just  as  it  is  written,  is  the  last  will  and  testament  of  the  testator;  and 
on  well  settled  principles  that  judgment  cannot  be  attacked  collaterally. 
While  the  judgment  of  the  proper  court  admitting  the  will  to  probate 
remains  in  force,  no  court  is  authorized,  in  the  absence  of  fraud,  to 
adjudge  that  the  instrument,  or  any  of  its  provisions,  is  not  the  will  of 
the  testator.  Neither  can  it  add  provisions  not  written  in  the  will.  It 
can  only  construe  the  instrument  as  it  is  written. 


POTTER  V.  POTTER. 

(Supreme  Court  of  Ohio,  1875,  27  O.  St.  84.) 

Day,  J.  The  original  action  was  brought  by  the  plaintiff  against 
the  defendant,  to  recover  the  balance  due  on  a  promissory  note.  The 
defendant  answered  that  the  note  in  suit  was  the  only  one  remaining  un- 
paid of  several  notes  given  by  the  defendant's  testator  to  the  plaintiff 
for  a  farm ;  and  she  avers  that  said  notes  were,  by  mistake,  given  for 
five  hundred  dollars  too  much,  and  asks  to  have  the  mistake  corrected. 
The  plaintiff  replied,  denying  the  mistake.  This  was  the  issue  to  be 
tried,  and  the  case  having  been  appealed  to  the  District  Court,  was,  by 
that  court,  decided  in  favor  of  the  defendant,  and  a  decree  correcting 
the  mistake  was  rendered  accordingly. 

The  plainitiif  filed  a  motion  for  a  new  trial,  on  the  ground  that  the 
finding  of  the  court  was  against  the  law  and  the  evidence. 

The  motion  was  overruled,  and  a  bill  of  exceptions  embodying  all  the 
evidence  was  taken. 

To  reverse  the  judgment  rendered  by  the  District  Court  in  favor  of 
the  defendant,  the  plaintiff  took  the  case,  by  petition  in  error,  to  the 
Supreme  Court. 

The  question  for  our  determination,  then,  is  whether  the  District 
Court  erred  in  finding  upon  the  evidence  that  there  was  a  mistake  m 
the  amount  specified  in  the  notes  in  controversy. 

This  question,  under  a  well-settled  rule,  applicable  to  the  review  of 
facts  on  error,  can  not  be  affirmatively  answered,  unless  the  finding 


Ch.    6)  EEFORMATIOX    OF     INSTRUMENTS.  31 


was  manifestly  unwarranted  by  the  evidence.  But,  in  determining 
whether  the  finding  is  supported  by  the  evidence,  reference  must  be 
had  to  the  character  of  the  issue  to  be  tried,  and  the  degree  of  evidence 
required  by  law  to  warrant  an  affirmative  finding. 

When  the  reformation  of  a  written  instrument  is  sought  on  the 
ground  of  mistake,  the  presumption  is  so  strongly  in  favor  of  the  in- 
strument, that  the  alleged  mistake  must  be  clearly  made  out  by  proofs 
entirely  satisfactory,  and  nothing  short  of  a  clear  and  convincing  state 
of  fact,  showing  the  mistake,  will  warrant  the  court  to  interfere  with 
and  reform  the  instrument.  This  principle  rests  upon  the  soundest 
reason  and  upon  undisputed  authority,  and  if  not  adhered  to  by  the 
courts,  or  when  plainly  disregarded,  is  not  enforced  by  reviewing  courts, 
the  security  and  safety  reposed  in  deliberately  written  instruments 
will  be  frittered  away,  and  they  will  be  left  to  all  the  uncertainty  in- 
cident to  the  imperfect  and  "slippery  memory"  of  witnesses. 

The  evidence  produced  by  the  parties  was  conflicting,  and,  viewed  in 
the  light  of  the  corroborating  circumstances,  leaves  the  mind,  to  say 
the  least,  doubtful  of  the  existence  of  the  mistake  alleged.  It  is  quite 
manifest  that  the  mistake  was  not  made  out  by  the  clear  aand  convinc- 
ing proof  which  the  law  requires  to  warrant  the  finding  of  a  mistake  in 
the  instruments  in  controversy. 

This  case  is  distinguishable  from  that  of  Clayton  and  wife  v.  Freet 
et  al.,  10  Ohio  St.  544,  where  the  evidence  was  such  as  to  leave  the 
mind  impressed  with  the  belief  that  the  alleged  mistake  existed,  and 
the  doubt  arose  only  as  to  whether  it  was  proven  with  sufficient  clear- 
ness. In  such  a  case,  the  court  held  the  judgment  based  on  the  finding 
of  the  mistake  should  not  be  reversed  on  error.  But  in  this  case,  the 
doubt  arises,  not  only  as  to  whether  the  mistake  was  proven  with  suffi- 
cient clearness,  but  as  to  whether  it  should  be  regarded  as  proved  at  all, 
by  a  fair  preponderance  of  the  evidence.  However  this  may  be,  wc 
think  it  is  manifestly  clear,  from  the  evidence,  that  the  court  disre- 
garded the  rule  of  law  requiring  clear  proof,  and  its  finding  can  be 
sustained  only  upon  the  su])]:)osition  that  it  regarded  the  law  as  re- 
quiring nothing  more  than  a  mere  preponderance  of  evidence  to  war- 
rant a  finding  in  favor  of  the  alleged  mistake.  We  think,  therefore, 
that  the  court  erred  in  ai)plying  the  law  to  the  fads  of  the  case,  and 
for  that  reason  should  have  granted  the  motion  for  a  new  trial.  Judg- 
ment reversed  and  cause  remanded. 


32  EEroRMATiON  OF  INSTRUMENTS.  (Part  3 


PARISH  V.  CAMPLIN. 

(Supreme  Court  of  Indiana,  1894,  139  Ind.  1,  37  N.  E.  607.) 

McCabe,  J.  .  .  The  principal  controversy  is  over  the  first  con- 
ckision  of  law  stated,  to  the  effect  that  the  appellee  Camplin  is  en- 
titled to  a  reformation  of  the  deed.  It  is  contended  by  appellants 
that  because  the  names  of  Mary  Goodwine  and  her  husband  were  left 
out  of  the  body  of  the  deed,  it  was  no  deed  at  all  as  to  her,  and  it 
could  not  be  reformed,  and  they  cite  Cox  v.  Wells,  7  Blackf.  410, 
in  support  of  that  proposition.  It  was  held  in  that  case,  and  we  think 
correctly,  that  a  deed  tendered  under  a  contract  to  execute  a  deed 
with  relinquishment  of  dower,  which  did  not  contain  the  name  of  the 
wife  in  the  body  of  the  deed  was  insufficient.  But  there  was  no  claim 
of  mistake  in  that  case,  and  no  attempt  at  reformation.  The  other 
cases  cited  by  appellants  have  no  application  here. 

It  is  contended  by  appellants  that  the  deed  of  a  married  woman 
can  not  be  reformed  on  account  of  a  mistake,  except  as  to  a  matter 
of  mere  description  of  the  premises  intended  to  be  conveyed,  and  they 
cite  a  large  number  of  cases  in  this  court  to  the  effect  that  equity 
affords  no  relief  against  such  a  mistake.  Hamar  v.  Medsker,  60  Ind. 
413;  Carper  v.  Hunger,  62  Ind.  481;  McKay  v.  Wakefield,.  63  Ind. 
27;  Wilson,  Admr..  v.  Stewart,  63  Ind.  294;  Baxter  v.  Bodkin,  25  Ind. 
172;  Shumaker  v.  Johnson,  35  Ind.  33;  Behler  v.  Weyburn,  59  Ind. 
143;  Dunn  v.  Tousey,  80  Ind.  288;  Travellers'  Ins.  Co.  v.  Noland, 
97  Ind.  217.  But  none  of  these  cases' holds  that  a  married  woman's 
deed  can  not  be  reformed  for  other  mistakes  than  those  of  description 
of  the  premises  intended  to  be  conveyed. 

If  the  deed  of  a  married  woman  may  be  reformed  on  account  of  a 
mistake  in  the  description  of  the  premises  or  estate,  or  interest  intend- 
ed to  be  conveyed,  as  is  decided  in  the  cases  cited,  no  good  reason  is 
perceived  why  it  may  not  be  reformed  as  to  other  mistakes  therein. 
This  is  not  a  case  like  Baxter  v.  Bodkin,  25  Ind.  172 ;  Stevens  v.  Parish, 
29  Ind.  260,  and  other  cases  referred  to  by  appellants'  counsel  where 
the  defect  in  the  conveyance  sought  to  be  cured  was  the  failure  of 
the  husband  to  join  in  the  deed  of  his  wife.  Such  a  defect  can  not 
be  cured  either  by  equity  or  by  the  voluntary  action  of  the  husband 


Ch.    6)  EEFORMATIOX    OF     INSTRUMENTS.  33 

in  the  execution  of  another  separate  deed  on  his  part  to  the  same 
person  for  the  same  premises  as  those  contained  in  the  wife's  deed. 
The  reason  of  this  is  that  the  statute  provides  that  the  "wife  shall  have 
no  power  to  encumber  or  convey  such  (her)  lands  except  by  deed  in 
which  her  husband  shall  join."  3  Burns'  R.  S.  1894,  section  6961 ; 
R.  S.  1881,  section  5116.  Those  cases  correctly  hold  that  on  account  of 
that  statute  the  separate  deed  of  the  wife  is  absolutely  void.  If  the 
instrument  is  absolutely  void,  it  is  as  if  it  never  had  been  written, 
or  signed.  In  that  case  to  reform  it  would  be  to  make  a  deed  for 
her,  by  a  court  of  equity,  that  she  never  made,  and  no  part  of 
which  she  ever  made. 

Here  the  defect  does  not  arise  out  of  the  fact  that  the  attempted 
conveyance  was  one  which  a  statute  expressly  forbids,  and  renders 
therefore   absolutely   void.      The   attempted    conveyance    was    in    all 
respects  lawful  had  the  contract  been  carried  out  without  the  inter- 
vention of  a  mistake.     It  has  been  held  by  this  court  that  a  mistake 
in  a  deed  of  a  married  woman  may  be  reformed  so  as  to  make  it 
conform  to  the  intention  of  the  parties  thereto,  and  that  such  ref- 
ormation is  not  the  making  of  a  new  contract  by  the  court  for  her. 
which  she  herself  has  not  made,  as  contended  by  the  appellants.    Styers 
v.  Robbins,  Id  Ind.  547;  Comstock  v.  Coon,  135  Ind.  640.    The  cases 
on  the  subject  of  reformation  as  to  the  description  of  the  estate  or 
interest  intended  to  be  conveyed,  already  cited  above,  fully  justify  the 
conclusion  of  law  that  the  deed  ought  to  be  reformed  so  as  to  make  it 
a  conveyance  of   the  undivided   four-lifths.     And   even  though  the 
parties  may  have  known  that  the  deed  read  three-fifths  instead  of 
four-fifths,  those  cases  hold  that   it   would  constitute   a   mistake  of 
facts,  and  not  a  mistake  of  law,  if  the  parties  really  thought  the  deed 
sufficient  to  convey   the   four-fifths,   and   would   entitle   the   appellee 
Camplin  to  a  reformation  in  that  respect.     The  finding  is  that  they 
did  all  so  believe. 

But  it  is  contended,  with  much  zeal  and  ability  on  behalf  of  appel- 
lants, that  the  omission  of  the  names  of  Mary  M.  Goodwine  and  her 
husband  from  the  body  of  the  deed  rendered  it  a  mere  nullity  as  to 
them,  and  hence  there  could  be  no  reformation  as  to  them;  and  to  re- 
form the  deed  in  that  respect  would  amount  to  the  making  of  a  con- 
tract or  deed  for  Mrs.  Ooodwinc  and  licr  husband  which  they  never 
themselves  made. 
3  Eq— 3 


34  EEFORMATION    OF    INSTRUMENTS.  (Part    3 

Many  authorities  are  cited  to  the  effect  that  the  grantor's  name 
must  be  in  the  body  of  the  deed,  or  it  will  be  void.  We  do  not  stop 
to  determine  whether  that  is  the  "legal  effect  of  leaving  out  of  the 
body  of  the  deed  the  name  of  the  grantor  or  not;  if  it  was  competent 
and  proper  to  reform  the  deed  so  that  the  names  of  the  "Goodwines 
would  appear  therein,  as  was  done,  that  is  sufficient  to  uphold  the 
judgment  of  the  trial  court. 

That  question  has  been  settled  by  this  court  against  appellants, 
in  Collins  v.  Cornwell,  131  Ind.  20.  In  that  case  a  married  woman 
had  undertaken  to  mortgage  her  real  estate  for  money  borrowed  by 
herself.  Her  husband  joined  with  her  in  the  execution  of  the  mort- 
gage, but  his  name  nowhere  appeared  in  the  body  thereof,  and  ap- 
peared only  where  he  signed  it  with  his  wife  and  in  the  certificate  of 
acknowledgment  by  the  notary  public,  just  as  in  the  case  at  bar.-  The 
mortgage  was  reformed  on  the  ground  that  the  husband's  name  had 
been  omitted  by  the  mutual  mistake  of  all  the  parties.  See,  also,  Calton 
V.  Lewis,  119  Ind.  181. 


SHROYER  V.  NICKELL. 

(Supreme  Court  of  Missouri,  1874,  55  Mo.  264.) 

Sherwood^  J.  .  .  .  The  reformation  of  deeds  and  of  contracts, 
whether  sealed  or  otherwise,  executed  or  merely  executory,  is  one  of 
the  most  familiar  doctrines  pertaining  to  equity  jurisprudence.  But  it 
is  to  be  observed  of  this  power  of  reforming  instruments,  that  it  always 
has  for  its  basis  the  fact  that  the  parties  thereto  are  capable  of  making 
a  valid  contract.  This  capability  cannot  be,  in  general,  affirmed  of  a 
married  woman.  The  only  exception  to  this  rule  of  incapacity,  so 
far  at  least  as  it  concerns  her  individual  rights,  is  where  a  feme 
covert  contracts  with  regard  to  her  separate  estate;  for  in  respect  to 
that,  she  is  held  a  feme  sole  by  courts  of  equity.  But  beyond  this, 
the  original  inability  to  make  a  binding  contract  still  exists  in  all  its 
ancient  vigor,  save  where  modified  by  statute.  It  was  one  of  the 
fundamentals  of  common  law,  that  the  contract  of  a  feme  covert  was 
absolutely  void,  except  where  she  made  a  conveyance  of  her  estate 
by  deed  duly  acknowledged,  or  by  some  matter  of  record;  and  this 


Ch.    6)  EEFORMATIOX    OF     IXSTRUMEXTS.  35 

could  only  be  done  after  private  examination  as  to  whether  such  con- 
veyance was  voluntarily  made;  and  our  statutory  mode,  whereby 
the  deed  of  a  married  woman  is  executed  and  acknowledged,  is  but 
substitutionary  of  the  common  law  method  in  this  regard.  This  is 
the  only  change  that  our  statute  has  wrought. 

It  follows  as  an  inevitable  sequence  from  these  premises,  that, 
aside  from  the  exceptional  case  above  noted,  a  feme  covert  is  utterly 
incapable  of  binding  herself  by  a  contract  to  convey  her  land,  either 
at  law  or  in  equity,  except  by  compliance  with  the  prescribed  statu- 
tory forms.  An  attempted  contract  on  her  part  is  not  such  compliance, 
nor  is  her  disappointed  intention  to  convey  clothed  with  those  forms. 


MILLS  V.  LOCKWOOD. 

(Supreme  Court  of  Illinois,  1866,  42  111.  111.) 

BrEESE,  J. — This  was  a  bill  in  chancery,  exhibited  in  the  Marshall 
Circuit  Court  by  Ralph  Lockwood  against  Elisha  S.  Mills  and  others, 
to  reform  a  deed  and  to  enjoin  proceedings  in  an  action  of  ejectment, 
brought  by  the  defendants  against  complainant.     .     .     . 

On  the  point  of  laches,  in  not  resorting  to  this  remedy  at  an  earlier 
period,  the  answer  is,  the  statute  of  limitations  has  not  run  against 
the  complainant,  and  he  has  been,  all  the  time  since  his  purchase,  in  the 
peaceable  possession  of  the  lands.     He  was  in  no  position  to  act;  he 
could  only  be  quiet,  awaiting  the  attack  of  those  who  supposed  they 
had  paramount  title.     In  such  case,  the  lapse  of  time  is  not  material. 
So  soon  as  the  heirs  at  law  of  Cephas  Mills  brought  their  action  of 
ejectment  and  recovered  a  verdict,  then  complainant  filed  this  bill  al- 
leging the  mistake,  and  seeking  to  correct  it.    He  had  no  motive  to  move 
before  he  was  molested.     If  there  be  any  laches,  is  it  not  rather  im- 
putable to  the  heirs,  who  slumbered  on  tiicir  rights,  if  they  had  any, 
so  many  years?     It  is  not  understood  that  a  statute  of   limitations, 
or  rule  of  limitation  in  equity,  runs  against  a  possessor  of  real  estate, 
but  it  runs  against  him  who  is  out  of  possession.     Barbour  v.  Whit- 
lock,  4  Monroe,  197. 

The  case  of  Lindsay  v.  Davenport,  18  111.,  .381,  is  like  this,  only  tlial 
the  mistake   was  corrected  in    favor  of   the   grantor  after   the   lapse 


36  REFORMATION    OF    INSTRUMENTS.  (Part    O 

of  twenty-two  years,  he  all  the  time  having  remained  in  possession 
of  the  tract  he  had  by  mistake  included  in  his  deed,  and  no  rights  of 
third  parties  had  intervened. 


BREEN  V.  DONNELLY. 

(Supreme  Court  of  California,  1887,  74  Cal.  301,  15  Pac.  845.) 

McFarland,  J.     This  is  an  action  to  reform  a  deed.     .     .     . 

This  case  has  been  argued  by  counsel  for  appellants  upon  the 
theory  that  there  should  be  applied  to  it  the  rule  that  where  coterminous 
owners  of  land  establish  a  boundary  line  between  them,  and  acquiesce 
in  its  correctness  during  the  period  of  statutory  limitation,  such  line 
can  not  afterward  be  disturbed.  Such  is  certainly  the  general  rule 
in  actions  of  ejectment  to  quiet  title,  etc.,  although  it  is,  perhaps,  not 
definitely  settled  to  be  the  rule,  even  in  those  cases,  when  there  has  been 
a  mutual  mistake.  (See  Shells  v.  Haley,  61  Cal.  157,  and  Smith  v. 
Robarts,  8  West  Coast  Rep.  503.)  But  this  is  an  action  to  reform  a 
deed, — to  correct  a  mistake  in  a  written  instrument  and  make  it  con- 
form to  the  real  intent  of  the  parties.  That  a  court  of  equity  has 
power  to  correct  such  a  mistake,  in  a  proper  case,  is,  of  course,  be- 
yond doubt,  and  that  the  facts  here  make  a  proper  case  is  equally 
clear.  It  is  established  beyond  doubt  that  the  two  tenants  in  common 
intended  to  convey  by  deed  to  each  other  the  half  of  a  tract  of  land, 
and  that  by  pure  mistake  the  deed  sought  to  be  reformed  failed  to 
convey  such  half.  There  is  no  question  here  of  innocent  purchasers. 
Neither  are  there  any  equities  by  reason  of  defendants  having  put  any 
improvements  on  the  land  not  included  in  the  deed.  They  have  had  the 
benefit  of  the  use  of  the  land  for  pasturage  since  the  date  of  the  deed, 
and  have  not  expended  upon  it  any  money  whatever.  In  good  con- 
science they  ought  to  correct  the  mistake;  and  their  only  defense  is 
founded  upon  the  naked  plea  of  the  statute  of  limitations. 

But  we  think  that  the  action  was  commenced  in  time.  Section  328 
of  the  Code  of  Civil  Procedure  enumerates  the  kinds  of  actions  which 
must  be  commenced  within  three  years ;  and  subdivision  4  of  said  sec- 
tion is  as  follows : 

"An  action  for  relief  on  the  ground  of  fraud  or  mistake.  The 
cause  of  action  in  such  case  not  to  be  deemed  to  liarc  accrued  until 


Ch.    6)  KEFORMATIOX    OF     INSTRUMENTS.  37 

the  discovery,  by  the  aggrieved  party,  of  the   facts  constituting  the 
fraud  or  mistake." 

In  the  case  at  bar,  the  discovery  of  the  mistake  was  not  made  imtil 
1880,  at  which  time  the  cause  of  action  "is  deemed  to  have  accrued." 
The  action  was  commenced  in  less  than  two  years  afterwards.  It  was 
therefore  commenced  in  time,  unless  the  circumstances  were  such  that 
plaintiff  ought  to  have  known  the  mistake,  and  therefore  should  be  held 
in  law  to  have  had  knowledge  of  it  before  the  time  of  its  actual  dis- 
covery. But  we  think  that  there  were  no  circumstances  from  which 
he  should  be  charged  with  such  knowledge.  After  the  partition  line 
had  been  run  by  a  surveyor  believed  to  be  competent  and  honest,  and 
who  had  been  specially  employed  for  that  purpose,  there  was  nothing 
to  excite  the  suspicion  of  either  party  that  such  line  did  not  divide 
the  rancho  into  two  equal  parts.  Looking  at,  or  walking  or  riding 
over,  or  using  for  grazing  purpose,  a  tract  of  land  containing  over 
twenty-four  thousand  acres,  would  not  indicate  to  any  one  that  it  was 
five  hundred  acres  more  or  less  than  the  half  of  another  tract  con- 
taining over  forty-eight  thousand  acres. 


KINNEY  V.  ENSMENGER. 

(Supreme  Court  of  Alabama,  1889,  87  Ala.  340,  680,  6  So.  72.) 

SoMERViLLE,  J.  The  bill  is  filed  by  the  appellee,  Ensmenger,  to 
reform  a  land  deed  recently  executed  to  the  appellants,  and  also  the 
notes  given  for  the  purchase  money,  so  as  to  make  the  papers  show  on 
their  face  that  a  vendor's  lien  was  retained  in  accordance  with  what  is 
alleged  to  have  been  the  mutual  agreement  between  the  contracting 
parties.  An  injunction  was  prayed  and  granted,  staying  the  threatened 
sale  of  the  land  in  the  meanwhile;  it  appearing  that  the  purchase- 
money  notes  were  not  yet  due.  and  that  the  defendants  were  insolvent. 
...  If  the  facts  alleged  in  the  bill  are  true,  the  case  is  clearly 
brought  within  the  jurisdiction  of  chancery  under  the  equity  head  of 
reformation  of  written  instruments  on  the  ground  of  mistake  or  fraud, 
unless  the  failure  of  the  complainant  to  inform  himself  as  to  the  con- 
tents of  the  deed  and  notes  be  such  culpable  negligence  as  to  bar  him 
of  his  remedy  in  a  court  of  conscience.  'J'he  bill  avers  a  distinct 
agreement  between  the  parties  that  the  deed  and  notes  should  show  on 


3S  EEFOKMATION    OF   INSTRUMENTS.  (Part    3 

their  face  a  retention  of  a  vendor's  lien,  and  that  the  omission  of  this 
stipulation  from  these  papers  was  through  the  fraudulent  collusion  of 
the  defendants  and  one  Harrison,  who,  as  real-estate  agent,  negotiated 
the  sale  as  attorney  in  fact  of  the  complainant.     .     .     . 

The  complainant's  illiteracy  and  inability  to  understand  the  English 
language,  coupled  with  his  probable  confidence  in  his  trusted  agent, 
Harrison,  who  acted  for  him  in  negotiating  the  sale,  are  prima  facie 
sufficient,  under  the  facts  of  this  case,  to  acquit  him  of  such  culpable 
negligence  in  failing  to  be  informed  as  to  the  contents  of  the  deed  and 
notes  as  would  prevent  him  from  obtaining  relief  in  a  court  of  equity. 
The  bill  is  not  wanting  in  equity,  and  there  was  no  error  in  refusing 
to  dissolve  the  injunction  on  this  ground.  The  demurrer  to  it  also 
was  correctly  overruled. 


PALMER  v.  HARTFORD  INS.  CO. 

(Supreme  Court  of  Connecticut,  1887,  54  Conn.  488,  9  All.  248.) 

Suit  for  the  reformation  of  a  policy  of  fire  insurance  and  for 
the  recovery  of  the  amount  due  on  the  policy  when  reformed ;  brought 
to  the  Superior  Court  in  New  London  County. 

Pardee,  J.  The  complaint  in  this  case  is  in  efifect  as  follows: 
Prior  to  May  15th,  1884,  the  defendant  had  issued  to  the  plaintififs 
a  policy  of  insurance  against  loss  by  fire  upon  merchandise ;  on  that 
day  it  expired ;  on  that  day  the  defendant  proposed  to  them  to  renew 
the  insurance  upon  the  terms  and  conditions  of  the  expiring  policy, 
the  plaintiffs  accepted  the  proposition ;  the  defendant  wrote  a  poHcy, 
delivered  it  to,  and  received  the  premium  from  the  plaintiffs;  they, 
relying  upon  the  fidelity  of  the  defendant  to  its  promise,  and  supposing 
the  last  written  policy  to  contain  the  same  stipulations  and  conditions 
as  were  in  the  first,  omitted  to  read  it.  The  merchandise  was  dam- 
aged by  fire  on  August  17th,  1884;  subsequently  the  plaintiffs  for  the 
first  time  discovered  that  the  last  policy  contained  this  condition,  which 
was  not  in  the  first.  "Co-insurance  clause.  If  the  value  of  the  property 
at  the  time  of  any  fire  shall  be  greater  than  the  amount  of  the  insurance 
thereon,  the  insurer  shall  be  considered  as  co-insurer  for  such  excess, 
and  all  losses  shall  be  adjusted  accordingly."     In  this  respect  the  last 


Cll.    6)  EEFORMATIOX    OF     INSTRUMENTS.  39 

policy  materially  differs  from  the  first.  The  plaintiffs  would  not 
have  accepted  the  policy  and  paid  the  premium  if  they  had  known 
that  it  contained  this  clause;  and  if  the  defendant  had  notified  them 
of  its  refusal  to  perform  its  agreement,  they  could  and  would  have 
obtained  elsewhere,  at  the  same  price,  the  desired  insurance  upon 
the  stipulated  terms.  The  defendant  refuses  either  to  correct  the 
policy  or  perform  the  agreement.  The  plaintiffs  ask  that  the  policy 
may  be  reformed  so  as  to  express  the  agreement,  and  that  the  defendant 
be  compelled  to  perform  the  agreement  and  pay  the  indemnity  promised 
by  it.  The  defendant  answers  by  demurrer,  assigning  therefor  the 
following  reasons :  "That  upon  the  facts  stated  the  plaintiffs  are 
not  entitled  to  the  relief  sought ;  that  the  complainant  does  not  aver 
that  there  was  a  mutual  mistake  between  the  parties  as  to  the  terms 
of  the  policy  or  as  to  the  agreement  for  one ;  and  that  the  plaintiffs 
were  guilty  of  gross  laches  in  not  reading  the  policy,  and  in  not  notify- 
ing the  defendant  of  their  claim,  so  that  it  might  have  exercised  its 
right  of  rescission  before  loss.     .     . 

It  is  a  matter  of  common  knowledge  that  a  policy  of  insurance 
against  fire,  at  the  present  day,  is  a  lengthy  contract,  which,  after 
specifying  the  main  things,  namely,  the  subject,  its  location,  the 
owner,  the  amount,  the  time  and  the  price,  embodies  very  many  stipu- 
lations and  conditions  for  the  protection  of  the  underwriter.  If  a 
person  desiring  indemnity  against  loss  applied  to  the  underwriter  and 
states  the  main  things  above  enumerated,  and  says  no  more,  he 
has  knowledge  that  he  has  asked  for  and  will  receive  a  contract  which, 
in  addition  to  those,  will  contain  many  limiting  conditions  in  behalf 
of  the  party  executing  it ;  and  when  he  receives  the  policy  he  cannot 
avoid  seeing  and  knowing  that  there  are  many  more  stipulations  in  it 
than  were  covered  by  his  verbal  request.  It  may  well  be  that  a  due 
regard  for  the  rights  of  others  requires  him  to  examine  those  stipula- 
tions, and  express  a  timely  dissent,  or  be  held  to  an  acceptance  thereof. 
Nothing  which  has  previously  transpired  between  him  and  the  under- 
writer furnishes  justification  for  omission  to  read  them.  The  under- 
writer has  not  invited  his  confidence  by  any  promise  as  to  what  the 
writing  shall  contain  or  omit. 

But  if  the  underwriter  solicits  a  person  to  purchase  of  him  indem- 
nity against  loss  by  fire,  and  if  they  unite  in  making  a  written  draft 
of  all  the  terms,  conditions  and  stipulations  which  are  to  become  a  part 
of  or  in  any  way  affect  the  contract,  and  if  the  underwriter  promises 


40  EEFOE.MATION    OF    INSTRUMENTS.  (Part    -'J 

to  make  and  sign  a  copy  thereof,  and  deliver  it  as  the  evidence  of  the 
terms  of  his  undertaking,  and  if  a  material  and  variant  condition  is 
by  mistake  inserted,  and  the  variant  contract  is  delivered,  and  the 
stipulated  premium  is  received  and  retained,  the  court  will  not  hear 
the  claim  that  he  is  entitled  to  the  benefit  of  the  variant  condition, 
where  the  other  party  had  neither  actual  nor  imputed  knowledge  of  the 
change.  In  his  promise  to  make  and  deliver  an  accurate  copy,  there 
is  justification  before  the  law  for  the  omission  of  the  other  party  to 
examine  the  paper  delivered,  and  for  his  assumption  that  there  is 
no  designed  variance.  A  man  is  not  for  his  pecuniary  advantage  to 
impute  it  to  another  as  gross  negligence,  that  the  other  trusted  to  his 
fidelity  to  a  promise  of  that  character. 

The  rule  of  law  that  no  person  shall  be  permitted  to  deliver  himself 
from  contract  obligations  by  saying  that  he  did  not  read  what  he 
signed  or  accepted,  is  subject  to  this  limitation,  namely,  that  it 
is  not  to  be  applied  in  behalf  of  any  person  who  by  word  or  act  has 
inducted  the  omission  to  read.  The  defendant  has  brought  to  our 
notice  a  few  of  the  many  cases  in  which  the  rule  has  been  plainly  de- 
clared ;  but  we  think  that  in  few  or  none  of  these  did  the  party  seeking 
to  enforce  it  subject  himself  to  this  limitation. 

There  was  in  the  first  written  draft  agreed  upon  by  the  plaintiffs 
and  defendant  the  contract  between  them ;  in  all  its  terms  and  con- 
ditions it  became,  and  has  hitherto  continued  to  be  operative.  The 
draft  of  another  and  variant  one  has  not  annullel  or  affected  it,  because 
the  last  has  not  in  the  eye  of  the  law  been  accepted  by  or  become  obli- 
gatory upon  the  plaintififs.  That  contract  the  defendant  had  the  right 
to  rescind, — a  right  which  it  has  possessed  in  its  fullest  measure  be- 
cause it  was  not  affected  by  the  delivery  of  the  variant  one,  not  ac- 
cepted by  the  plaintiffs;  and  if,  because  of  its  own  negligence  in  omit- 
ting to  execute  and  deliver  a  true  copy  of  the  original  agreement,  it 
resulted  that  it  was  inducted  to  refrain  from  exercising  its  right 
of  rescissioin,  it  must  accept  the  consequences  rather  than  cast  the 
burden  upon  the  plaintiffs. 


GILMORE  V.  THOMAS. 

(Supreme  Court  of  Missouri,  1913,  252  Mo.  147,  158  S.  W.  577.) 

Roy,  C. — This  is  a  proceeding  to  quiet  the  title  to  twenty  acres, 
the  west  half  of  the  southwest  quarter  of  the  northwest  quarter  of 


• 


Cll.    6)  REFORMATION    OF     INSTRUMENTS.  41 

section  28,  township  30,  range  23,  in  aid  of  which  an  injunction  was 
issued  to  prevent  defendant  from  cutting  timber  from  the  land  pending 
the  suit.     .     .     . 

It  is  conceded  that  the  land  was  misdescribed  in  the  will.  It  was 
also  misdescribed  in  the  executor's  deed  to  Sterling  E.  Gilmore.  Re- 
gardless of  the  mistake  in  the  will,  the  execvitor's  ded  did  not,  to  say 
the  least  of  it,  convey  the  legal  title  to  Sterling,  for  the  simple  reason 
that  it  did  not  describe  the  land,  but  instead  described  land  six  miles 
away.  Whatever  right  either  plaintitf  or  defendant  may  have  under 
that  deed  is  an  equitable  right  and  not  a  legal  one.  We  will  examine 
the  claim  of  each  to  an  equitable  interest  in  the  land  under  the  execu- 
tor's deed. 

1.  The  plaintitf  claims  that  he  furnished  the  money,  sixty  dollars, 
to  pay  for  the  land ;  and  that  the  deed  was  made  to  Sterling  under  an 
arrangement  between  them  that  Sterling  was  to  convey  it  to  the  plain- 
tiff. In  other  words,  the  plaintiff  asks  that  the  conveyance  to  Sterling 
be  upheld,  but  that  Sterling's  grantees  be  adjudged  to  hold  the  land 
in  trust  for  the  plaintiff.  The  trouble  with  the  plaintiff  is  that,  not 
having  clean  hands  in  that  matter,  he  cannot  get  into  a  court  of  equity 
to  have  such  a  trvist  declared.  He  was  executor  of  the  will ;  and 
as  such  he  had  no  lawful  right  to  purchase  the  land  of  the  estate 
directly  or  indirectly.     .     . 

The  doctrine  that  he  who  comes  into  a  court  of  equity  must 
come  with  clean  hands  may  be  invoked  by  this  court  on  its  own  motion. 
(Creamer  v.  Bivert,  214  Mo.  1.  c.  485.)  We,  therefore,  decline  to 
enforce  any  equity  plaintiff  may  claim  to  hold  under  the  sale  to  Ster- 
ling E.  Gilmore. 


STEINBACH  v.  RELIEF  FIRE  INS.  CO. 

(Court  of  Appeals  of  New  York,  (1879)  77  N.  Y.  498.) 

Earl,  J.  In  October,  1865,  the  defendant,  a  New  York  corpora- 
tion issued  to  the  plaintiff  at  Baltimore,  Maryland,  a  policy  of  in- 
surance against  fire  on  his  "stock  of  fancy  goods,  toys,  and  other  ar- 
ticles in  his  line  of  business,  contained  in  his  store,  occupied  by  him 
as  a  German  jol)ber  and  importer." 


42  KEFOEMATION   OF   INSTBUMENTS.  (Part    'J 

In  February,  1869,  the  plaintiff  commenced  an  action  against  the 
defendant,  to  recover  upon  the  poHcy  for  such  loss,  in  the  Superior 
Court  of  the  city  of  Baltimore.  The  defendant  appeared  in  that 
action  and  procured  the  removal  thereof  to  the  Circuit  Court  of  the 
United  States.  The  action  was  subsequently  tried  in  the  latter  court, 
the  defense  being  that  the  keeping  of  fire-works  was  a  breach  of  the 
policy.  The  court  held  that  the  terms  of  the  policy  prohibited  the 
keeping  of  fire-works,  and  rejected  proof  offered  by  the  plaintiff  to 
show  that  fire-works  constituted  an  article  in  the  line  of  business  of  a 
"German  jobber  and  importer,"  and  judgment  was  given  for  the  de- 
fendant. The  plaintiff  then  took  the  case,  by  writ  of  error,  to  the 
Supreme  Court  of  the  United  States,  and  there  the  judgment  was 
affirmed.'    .     .     . 

Now  the  plaintiff  has  commenced  this  action  to  reform  the  policy 
by  inserting  therein  permission  to  keep  fire-works,  on  the  ground  that 
such  permission  was  omitted  from  the  policy  by  mistake,  and  to  re- 
cover upon  the  policy  as  thus  reformed.  He  has  thus  far  been  de- 
feated, on  the  ground  that  the  judgment  in  the  United  States  Court 
is  a  bar  to  the  maintenance  of  this  action,  and  whether  it  is  or  not 
is  the  sole  question  for  our  determination. 

Whatever  was  necessarily  determined  in  that  action  concludes  the 
parties,  and  can  never  again  be  brought  into  litigation  between  them, 
so  long  as  the  judgment  therein  remains  in  force.  That  is  the  univer- 
sal rule  always  applied,  no  matter  how  much  injustice  may  be  done  in 
a  particular  case.  Such  a  rule  of  law,  which  generally  tends  to  justice, 
cannot  be  changed  to  meet  the  exigencies  of  a  case  where  a  different 
rule  would  work  out  juster  results. 

In  order  to  bring  a  case  within  the  rule,  the  second  suit  must 
be  founded  substantially  upon  the  same  cause  of  action  as  the  first ; 
and  the  test  of  that  is  that  the  same  evidence  will  support  both  actions  ; 
and  the  rule  is  the  same,  although  the  two  actions  are  different  in 
form:  (Gregory  v.  Burrall,  2  Edw.  Ch.,  417;  Rice  v.  King,  7  J.  R., 
20;  Johnson  v.  Smith,  8  id.,  383.)  And  it  matters  not  that  the  former 
action  was  decided  upon  erroneous  grounds:  (Morgan  v.  Plumb, 
9  Wend.,  287.) 

Here  there  was  but  one  contract  of  insurance,  and  the  cause  of 
action  in  the  Baltimore  suit,  as  in  this,  was  founded  on  that.  In  that 
suit  the  plaintiff  sought  to  recover  by  proving  that  he  was  permitted 


Ch.    6)  EEFORMATION    OF    INSTRUMENTS.  43 

to  keep  fire-works.  By  the  same  proof  he  seeks  to  recover  in  this. 
There  he  sought  to  prove  the  permission  by  parol.  Here  he  seeks 
preh'minarily  to  have  the  writing  reformed,  so  that  he  can  prove 
it  by  the  writing.  If  he  could  succeed  here,  he  would  in  some  form 
have  to  prove  precisely  what  he  oflfered  to  prove  there,  to  wit,  that 
he  was  permitted  to  keep  fire-works.  If  the  plaintijff  could  succeed 
in  reforming  this  contract,  it  would  not  change  its  scope  or  effect. 
It  would,  according  to  the  decisions  in  this  State,  be  the  same  contract 
still.  The  only  change  would  be  that  the  plaintiff  would  have  direct 
written  proof  of  what,  without  such  reformation,  would  rest  upon  con- 
struction and  inference  based  upon  other  provisions  in  the  contract, 
and  upon  parol  evidence.  The  contract  would  then  be,  in  its  legal 
effect,  the  same  as  that  the  plaintiff  sought  to  enforce  in  the  former 
suit. 

It  is  admitted  by  the  plaintiff  that  the  judgment  against  him  in  the 
former  action  is  a  bar  to  any  recovery  in  this,  unless  he  can  change 
the  contract.  Now,  what  was  determined  in  that  action?  Clearly  that 
the  contract  between  the  parties  was  such  as  was  embraced  in  the 
policy  declared  on  and  proved  in  that  action ;  and  that  the  plaintiff 
had  violated  the  policy,  by  keeping  the  fire-works.  Now  he  seeks 
to  establish,  in  this  action,  that  that  was  not  the  contract,  and  to  have 
it  reformed ;  and  that  the  real  contract  beween  the  parties  was  not 
violated.  He  sought,  in  that  action,  to  recover  for  his  loss,  and  gave  all 
the  proof  he  could  to  show  that  he  was  entitled  to  recover.  Now  without 
alleging  that  there  was  more  than  one  contract  of  insurance,  or  more 
than  one  title  or  right,  upon  which  to  base  a  recovery,  he  seeks  to 
recover  for  the  same  loss.  This  is  a  case,  it  seems  to  me,  where  the 
doctrine  of  res  adjudicata  must  apply,  and  bar  a  recovery,  unless  plain 
principles  of  law,  which  have  always  been  regarded  as  important  in 
the  administration  of  justice,  are  disregarded. 

According  to  the  case  of  Washburn  v.  Great  Western  Ins.  Co.  (114 
Mass.,  175)- — in  all  its  essential  features  like  this — the  plaintiff,  havino- 
elected  to  sue  upon  the  contract  as  it  was,  and  been  defeated,  is  bound 
by  that  election,  and  cannot  now  maintain  this  action  to  reform  the 
contract. 

The  judgment  must  be  affirmed,  with  costs. 


44  REFORMATION   OP   INSTRUMENTS.  (Part    3 

SIBERT  V.  McAVOY. 

(Supreme  Court  of  Illinois,  1853,  15  111.   106.) 

Caton,  J.     .     .      We  think  the  complainant  has  come  too  late  with 
his  bill  to  correct  a  mistake  in  this  contract.     He  brought  an  action 
upon  that  contract,  which  he  prosecuted  to  final  judgment,  not  only  in 
the  circuit  court,  but  in  this  court  also.     He  declared  upon  the  con- 
tract as  it  was  written,  and  in  the  agreed  case  admitted,  that  the  work 
was  done  under  that  contract,  as  declared  upon  in  that  action.    There 
was  a  dispute  about  the  construction  of  the  contract,  but  none  about 
its  terms.    He  contended  then  with  his  witness,  that  the  written  con- 
tract provided  the  same  rule  for  the  measurement  of  the  work  which  he 
now  insists  was  the  actual  agreement  of  the  parties,  but  which  he  now 
says  was  left  out  of  the  agreement  by  mistake  in  drawing  it  up.     In 
the  construction  of  that  agreement  the  court  disagreed  with  him,  and 
rendered  judgment  against  him  upon  the  contract.     The  contract  then 
was  merged  in  the  judgment,  and  as  a  contract,  ceased  to  exist.     The 
trial  was  upon  the  entire  contract,  and  left  no  part  of  it  open  to  future 
controversy  or  adjudication.     There  is,  then,  no  contract  left  between 
the  parties,  to  be  reformed  and  corrected.     If  there  was  a  mistake  in 
drawing  up  the  contract  the  party  should  have  had  it  corrected  be- 
fore he  called  upon,  or,  at  least,  before  he  finally  submitted  it  to  a  court 
for  its  adjudication.     He  had  no  right,  first,  to  go  to  the  court  of  law 
and  there  try  the  experiment  to  see  whether  he  could  not  get  such  a 
construction  adopted  as  would  make  it  embrace  all  that  he  contended 
for,  as  constituting  the  agreement  of  the  parties,  and  failing  in  that, 
go  into  equity  to  get  that  inserted  in  the  contract  which  he  insisted  was 
in  it  before. 


DAVENPORT  v.  WIDOW  AND  HEIRS  AT  LAW  OF  SOVIL. 

(Supreme  Court  of  Ohio,  1856,  6  O.  St.  459.) 

BrinkERHOFF,  J.  .  .  .  But  in  this  case,  the  mistake  not  only 
occurs  in  the  mortgage,  but  has  been  carried  into  the  decree  and  sale 
of  the  premises  described  in  the  mistaken  mortgage ;  and  it  is  contended 
that  the  mortgage  is  merged  in  the  decree,  and  the  decree,  satisfied  by 


Ch.    6)  REFORMATION    OF     INSTRUMENTS.  45 

the  sale.     And  this  presents  the  second  question  on  which  we  are  to 
pass. 

Here  was  a  total  mistake  in  the  description  of  the  land  intended 
to  be  mortgaged.  The  mortgage  was  intended  to  embrace  premises 
which  the  mortgagor  did  own,  but  by  mutual  mistake  it  described 
only  a  parcel  of  land  which  the  mortgagor  never  did  own,  and  to  which 
he  never  had  or  pretended  to  have  any  claim.  The  demurrer  to  the 
petition  admits  this ;  and  if  it  were  denied,  and  clearly  and  satisfactorily 
proved,  the  case  w^ould  be  the  same.  Let  the  mortgage  be  reformed, 
and  made  to  conform  to  the  intention  of  the  parties ;  how  then  stands 
the  case?  The  reformed  mortgage  is  not  merged  in  any  decree,  for 
there  is  no  decree  for  the  sale  of  any  premises  described  in  the 
mortgage  as  corrected  and  reformed.  The  decree  may  be  satisfied,  at 
least  pro  tanto,  to  the  amount  of  the  sale;  but  the  decree  was  based 
on  the  mistaken,  and  not  on  the  true,  mortgage;  the  sale  was  of  land 
not  embraced  in  the  true  mortgage ;  no  money  or  other  valuable  thing 
was  ever  received  by  the  plaintiff;  the  whole  proceeding  is  infected  by 
the   original   mistake,    and   is    therefore   baseless,    unsubstantial,    and 


nugatory. 


In  the  conclusion  at  which  we  have  arrived  on  the  question,  we  are 
not  without  the  support  of  highly  respectable  authority.  The  case  of 
Blodgett  et  al.  v.  Hobart  et  al.,  18  Vt.  414,  presented  a  question  exactly 
analogous  to  that  now  before  us,  except  that  there  was  a  decree  of 
absolute  foreclosure,  instead  of  a  decree  for  sale  of  the  mortgaged 
premises,  as  in  this  case;  and  the  misdescription  went  to  a  part,  instead 
of  the  whole,  of  the  mortgaged  premises.   It  was  there  held  that, 
"if  the  mistake  was  mutual,  and  be  not  discovered  until  after  a  decree 
of  foreclosure  has  been  obtained  upon  the  mortgage,  and  the  time 
fixed  by  the  decree  for  the  payment  of  the  mortgage  debt  has  expired, 
and  the  mortgage  be  then  ordered  to  be  reformed,  the  decree  of  fore- 
closure will  be  opened,  so  as  to  permit  the  mortgagor  to  redeem  the 
entire  premises  by  payment  of  the  entire  sum  due  upon  the  mortgage." 
And  the  cautious  and  carefully  considered  observations  of  Ranney,  J., 
in  Hollister  v.  Dillon,  4  Ohio  St.  209,  arc  of  like  tendency.     We  are 
of  opinion,  therefore,  that  the  decree  and  sale  under  the   mistaken 
mortgage  constitute  no  just  obstacle  to  the  plaintiff's  relief,  especially 
as  he  will,  by  the  record  of  this  case,  be  forever  estopped  from  claim- 
ing any  title  to  premises  purchased  under  the  decree. 


46  EEScissiON.  (Part  3 


CHAPTER  VII.  RESCISSION 


BATES  V.  DEEAVAN. 

(New  York  Court  of  Chancery.  1835,  5  Paige,  299.) 

The  Chance;llor.  .  ,  .  The  failure  of  the  title  as  to  an  un- 
divided portion  of  the  premises,  by  the  successful  assertion  of  a  claim 
against  which  the  defendant  had  agreed  to  indemnify  the  complainant, 
would  have  been  sufBcient  to  enable  the  latter  to  resist  the  making  of 
a  decree  for  a  specific  performance,  upon  a  bill  filed  by  the  vendor. 
But  it  does  not  follow  from  this,  that  the  complainant  may  rescind 
the  whole  contract,  which  has  been  in  part  cr^nsummated  by  the  ex- 
ecution of  the  conveyance  and  the  payment  of  a  part  of  the  purchase 
money.  There  are  many  cases  in  which  the  court  will  not  lend  its  aid 
to  compel  a  specific  performance  of  an  executory  agreement,  in  which 
it  would  not  feel  itself  authorized  to  interfere,  by  decreeing  that  an 
executed  contract  should  be  rescinded.     .     .     . 


SECTION  I.  MISTAKE. 


KOWAEKE  V.  MILWAUKEE  ELEC.  R'Y.  &  LIGHT  CO. 

(Supreme  Court  of  Wisconsin,  1899,  103  Wis.  472,  79  N.  W.  762.) 

Plaintiff,  a  married  woman,  was  injured  by  jumping  from  de- 
fendant's street  car,  in  an  emergency,  and  its  liability  for  her  injuries 
was  probable.  It  appeared,  among  other  things,  that  she  was  a  woman 
of  intelligence  and  experience,  the  mother  of  three  children,  and  had 
passed  by  about  a  week  the  proper  period  of  her  menstruation.  The 
defendant's  surgeon,  in  company  with  her  own  family  physician,  visit- 


Ch.    7)  MISTAKE.  47 

ed  her  after  the  accident  and  learned  she  was  having  a  shght  uterine 
hemorrhage.  The  question  of  her  pregnancy  was  raised,  and  an 
examination  to  ascertain  that  fact  proposed  and  peremptorily  re- 
fused, she  stating  she  was  not  in  that  condition.  Thereafter  defendant's 
surgeon  negotiated  a  settlement,  under  circumstances  showing  an  entire 
absence  of  fraud,  and  she  thereupon  joined  with  her  husband  in 
executing  a  full  release  of  all  claims  and  demands,  for  damages  or 
otherwise  which  she  then  had  or  could  have  by  reason  of  jumping 
from  the  car.  About  two  weeks  thereafter  she  suflfered  a  miscar- 
riage.    .     . 

Dodge,  J.  .  .  .  To  formulate  an  accurate  and  practically  ap- 
plicable definition  of  the  mistake  of  fact  which  will  warrant  rescission 
of  a  contract  has  been  apparently  well-nigh  the  despair  of  law  writers. 
Indeed,  no  definition  or  general  rule  has  been  invented  which  is  suf- 
ficient or  accurate,  except  by  immediately  surrounding  it  with  num- 
erous exceptions  and  qualifications  more  important  than  itself.  This 
is  not  surprising,  in  view  of  the  fact  that  the  whole  doctrine  is  an  in- 
vasion or  restriction  upon  that  most  fundamental  rule  of  the  law,  that 
contracts  which  parties  see  fit  to  make  shall  be  enforced,  and  in  view 
of  the  further  consideration  that  one  or  both  of  the  parties  is  often, 
if  not  usually,  ignorant  or  forgetful  of  some  facts,  thoughtfulness  of 
which  might  vary  his  conduct.     .     .     . 

Another  essential  element  of  the  definition  is  that  the  fact  involved 
in  the  mistake  must  have  been  as  to  a  material  part  of  the  contract, 
or,  as  better  expressed  by  Mr.  Beach  (Mod.  Eq.  Jur.,  sees.  52,  53), 
an  intrinsic  fact ;  that  is,  not  merely  material  in  the  sense  that  it  might 
have  had  weight  if  known,  but  that  its  existence  or  nonexistence  was 
intrinsic  to  the  transaction, — one  of  the  things  actually  contracted 
about.  As,  in  the  familiar  illustration  of  the  sale  of  a  horse,  the  ex- 
istence of  the  horse  is  an  intrinsic  fact.  Another  partial  expression  of 
this  requisite,  adopted  by  Mr.  Pomeroy  (Eq.  Jur.,  sec.  856),  is  as  fol- 
lows: "If  a  mistake  is  made^as  to  some  fact  which,  though  connected 
with  the  transaction,  is  merely  incidental,  and  not  a  part  of  the  very 
subject-matter  or  essential  to  any  of  its  terms,  or  if  the  complaining 
party  fails  to  show  that  his  conduct  was  in  reality  determined  by  it 
in  either  case  the  mistake  will  not  be  ground  for  relief,  affirmative  or 
defensive."  The  last  part  of  this  statement  is  adopted  in  Klauber 
V.  Wright,  52  Wis.  303,  308;  Grymes  v.  Sanders,  93  U.  S.  55,  60. 


48  EESCissioN.  (Part  3 

Some  illustrative  cases  of  this  aspect  of  the  subject  may  serve  to 
elucidate.  The  damaged  condition  of  a  ship  at  sea,  as  to  which  both 
parties  to  her  sale  are  ignorant,  held  merely  a  collateral  circumstance, 
and  not  an  intrinsic  fact.  Barr  v.  Gibson,  3  Mees.  &  W.  390.  Financial 
condition  of  a  debtor  is  not  intrinsic  to  a  compromise  and  release  of 
his  debt,  so  that  mistake  thereon  will  justify  rescission.  Dambmann 
V.  Schulting,  75  N.  Y.  55,  63.  Ignorance  of  declaration  of  peace, 
greatly  enhancing  value  of  merchandise,  will  not  justify  rescission  of 
sale.  Laidlaw  v.  Organ,  2  Wheat.  178.  Sufficiency  of  security  for  a 
debt  purchased  as  part  of  firm  assets,  not  intrinsic.  Segur  v.  Tingley, 
11  Conn.  134,  143.  Certain  United  States  bonds  had  been  extended, 
and,  as  a  result,  were  commanding  premium  in  market.  Held  not  "of 
the  essence"  of  a  sale  at  par,  both  parties  being  ignorant  as  to  both 
extension  and  premium.  Sankey's  Ex'rs.  v.  First  Natl.  Bank,  78  Pa. 
St.  48,  55.  One  who  had  built  a  mill  partly  on  land  of  another  pur- 
chased of  that  other  two  lots,  both  parties  supposing  them  to  include 
the  mill,  which,  however,  was  found  to  be  on  a  third  lot.  Court  re- 
fused to  rectify,  holding  that  the  contract  related  to  purchase 
and  sale  of  the  lots  named,  and  that,  though  presence  of  mill  on  one  of 
them  might  have  been  an  important  consideration,  it  was  not  the  fact 
as  to  which  they  contracted,  not  intrinsic  to  the  transaction.  Webster 
V.  Stark,  78  Tenn.  406.  Fact  that  a  specific  tract  of  land  contains  less 
than  supposed,  not  aft'ecting  identity  of  thing  purchased,  is  not 
"of  the  very  subject-matter  of   the  sale."    Thompson  v.  Jackson,   3 

Rand.  (Va.),  507.     .     .     . 

Applying  the  definitions  and  rules  of  .  law  above  set  forth, 
with  their  qualifications,  to  the  facts  of  this  case,  it  is  clearly  apparent 
that  if  there  was  a  mistake,  in  the  sense  in  which  that  word  is  used 
in  the  law,  the  fact  as  to  which  such  mistake  existed  was  not  an  in- 
trinsic one, — it  was  not  of  the  subject-matter  of  the  contract.  There 
was  no  mistake  or  misunderstanding  as  to  the  acts  of  the  defendant, 
nor  as  to  the  injuries  which  the  plaintiff  had  received.  The  efifect 
of  those  injuries  was,  of  course,  problematical  and  conjectural.  That 
very  uncertainty  entered  into  the  compromise  made,  and  was  the 
consideration  of  a  certain  sum  on  one  si'de,  and  the  surrender  of  any 
larger  sum  on  the  other.  The  elements  of  the  contract  of  settlement 
were :  first,  whether  defendant  was  liable ;  and,  secondly,  what  amount, 
in  view  of  all  the  contingencies,  should  be  paid  and  received  in  satis- 


Ch.    7)  MISTAKE.  49 

faction  of  such  liability,  and  the  question  of  the  plaintiff's  condition, 
whether  pregnant  or  not,  was  merely  a  collateral  question.  It  was 
no  part  of  the  injury  caused  by  defendant,  nor  anything  for  which 
damages  should  be  paid.  At  most,  it  was  but  one  of  the  surrounding 
conditions  which  might  or  might  not  increase  the  eifect  of  the  injuries. 
It  is  probably  true,  in  the  great  majority  of  personal  injury  cases, 
that  the  effect  which  the  injuries  received  may  have,  as  to  time  of 
disability,  quantmn  of  suffering,  and  the  like,  may  be  modified  by  the 
physical  or  mental  condition  of  the  injured  party.  For  example,  a  pre- 
disposition to  rheumatism  would  be  a  condition  likely  to  enhance  the 
subsequent  effects  of  an  injury, — especially  a  dislocation  or  other  in- 
jury to  a  joint.  A  disturbed  condition  of  the  system  might  prevent 
the  reuniting  of  a  broken  bone,  otherwise  practically  certain.  A  pre- 
disposition to  nervous  troubles  might  vastly  multiply  the  effects  of  a 
slight  spinal  injury.  So  that  if  the  mere  ignorance  of  such  surround- 
ing conditions  can  suffice  to  render  ineffective  a  settlement,  because 
after  events  indicate  that  the  amount  paid  is  inadequate,  few  compro- 
mises of  the  damages  from  personal  injury  could  be  relied  on.  Com- 
promise is  highly  favored  by  the  law,  and  any  rule  or  doctrine  by  which 
the  fair  meeting  of  the  minds  of  the  parties  to  that  end,  in  the  great 
majority  of  cases  which  arise  in  human  affairs,  must  fail  to  be  per- 
manent or  effectual  to  settle  their  rights,  is  contrary  to  the  whole 
spirit  of  the  law,  and  should  not  be  adopted.  The  question  in  each 
such  case  is,  did  the  minds  of  the  parties  meet  upon  the  understanding 
of  the  payment  and  acceptance  of  something  in  full  settlement  of  de- 
fendant's liability?  If  they  did,  without  fraud  or  unfair  conduct  on 
either  side,  the  contract  must  stand,  although  subsequent  events  may 
show  that  either  party  made  a  bad  bargain,  because  of  a  wrong  estimate 
of  the  damage  which  would  accrue.     .     .     . 


DAMBMANN  v.  SCHULTING. 

(Court  of  Appeals  of  New  York,  1878,  75  N.  Y.  55.) 

This  action  was  brought  to  set  aside  a  release  under  seal,  and  to 
recover  a  balance  alleged  to  be  due  plaintiff  for  money  loaned  defend- 
ant by  the  firm  of  C.  F.  Dambmann  &  Co.,  of  which  firm  plaintiff  was 
a  partner,  and  to  whose  rights  he  succeeded.     .     .     . 
3  Eq-^ 


50  EESCissioN.  (Part  o 

Eart,,  J.     Prior  to  1866,  the  defendant  had  for  many  years  been  a 
merchant  extensively  engaged  in  business  in  the  city  of  New  York. 
In  February  of  that  year,  he  had  become  financially  embarrassed,  and 
contemplated  an  assignment  for  the  benefit  of  his  creditors.     He  was 
finally  dissuaded  from  making  an  assignment  by  the  promise  of  his 
creditors  to  loan  him  the  sum  of  $100,000  to  aid  him  in  meeting  his 
obligations.     There  was  evidence  tending  to  show  that  the  sums  thus 
to  be  loaned  were  to  be  repaid  when  he  became  able;  but  he  testified 
that  it  was  to  be  optional  for  him  to  repay  them,  in  case  he  paid  the 
debts,  which  he  then  owed,  in  full.  The  court  at  Special  Term  found 
that  the  arrangement  was  that  he  was  to  repay  these  sums  when  he 
became  able.     In  pursuance  of  this  arrangement,  the  firm  to  which 
plaintiff  belonged,  and  to  whose  rights  he  had  succeeded,  loaned  de- 
fendant $10,000.    On  the  seventh  day  of  March,  1867,  defendant  had 
paid  in  full  all  the  debts  he  owed  when  the  money  was  loaned  to  him, 
and  then,  at  his  request,  all  the  creditors  who  made  the  loans  executed 
and  delivered  to  him  an  instrument  of  which  the  following  is  a  copy, 
towit:     "We  the  undersigned  agree,  in  consideration  of   one  dollar 
paid  to  us.  to  discharge  H.  Schulting  from  the  legal  payment  of  the 
money  loaned  to  him  February  first,  1866,  said  Schulting  giving  his 
moral  obligation  to  refund  the  said  money,  in  part  or  whole,  as  his 
means  will  allow  in  future."     This  was  not  a  sealed  instrument,  and 
was  executed  upon  the  request  of  the  defendant,  upon  the  claim  by 
him  that  he  had  done  as  he  had  agreed  when  the  money  was  advanced 
to  him.     It  was  the  clear  intention  of  the  parties,  by  this  instrument, 
to  discharge  the  defendant  from  all  legal  obligation  to  pay  the  money 
advanced,  leaving  an  obligation  simply  binding  upon  his  conscience, 
but  not  enforceable  at  law,  to  pay  when  he  became  able,  in  whole  or  in 
part.    If  this  instrument  had  been  under  seal  or  based  upon  a  sufficient 
consideration,  no  proceedings  in  law  or  equity  could  have  been  there- 
after taken  to  enforce  payment  against  the  defendant. 

But  according  to  the  finding  of  the  Special  Term,  before  the  execu- 
tion of  this  instrument,  the  defendant  was  legally  liable  to  pay  when 
he  became  able,  and  this  liability  was  not  discharged  by  this  instrument, 
for  the  simple  reason  that  it  was  not  based  upon  any  consideration. 
It  was  not  in  the  nature  of  a  composition  of  a  debtor  with  his  creditors, 
and  cannot  be  sustained  upon  the  principles  applicable  to  composition 
agreements.  It  does  not  even  appear  that  each  creditor  signed  it  upon 
the  consideration  that  other  creditors  would  also  sign  it.     It  was  a 


Ch.    7)  MISTAKE.  51 

mere  agreement  to  discharge  debts  without  payment,  and  such  an 
agreement  cannot  be  upheld.     .     .     . 

The  defendant  knew  as  early  as  the  eighth  day  of  October, 
1868,  that  goods  to  the  amount  of  $400,000  had  been  sold,  and  that 
some  yet  remained  to  be  sold.  On  the  last-named  day  he  went  to  the 
plaintiff  and  said  to  him  that  he  understood  that  the  previous  paper 
signed  by  him — the  discharge  above  set  out — was  not  a  legal  release, 
because  he  had  not  paid  anything  on  account  of  the  $10,000,  and  he 
wanted  to  know  if  the  plaintiff  would  sign  a  legal  release,  upon  pay- 
ment of  $5,000.  The  plaintiff  said  he  would.  Nothing  more  was 
said,  and  defendant  paid  him  $5,000;  and  then  the  plaintiff  executed  to 
him,  under  seal,  a  full  and  absolute  discharge  from  all  liability.  This 
action  was  brought  to  set  aside  this  release  and  to  recover  the  balance 
of  the  $10,000.     .     .     . 

It  is  further  claimed  that  the  plaintiif  ought  to  be  entitled 
to  relief  on  account  of  mistake.  He  testified  that  he  would  not  have 
executed  the  release  if  he  had  known  the  defendant's  financial  con- 
dition. But  as  already  shown,  the  defendant  was  in  no  way  responsible 
for  his  ignorance,  and  was  under  no  legal  or  equitable  obligation  to 
disclose  the  facts  as  to  his  pecuniary  circumstances.  The  plaintiif 
could  have  learned  the  facts  by  inquiry  of  the  defendant  or  his  vendees. 
There  was  no  mistake  as  to  any  fact  intrinsic  to  the  release.  Plaintiff 
knew  that  the  defendant  had  not  been  legally  discharged  from  his 
liability,  and  that  for  the  $5,000  he  was  to  give  him  an  absolute  re- 
lease ;  and  he  gave  him  just  such  a  release  as  he  intended  to.  There  was 
no  mistake  of  any  intrinsic  fact  essential  to  the  contract  or  involved 
therein.  The  defendant's  financial  condition  was  an  extrinsic  fact, 
which  might  have  influenced  the  plaintiff's  action  if  he  had  known  it. 
But  ignorance  of  or  mistake  as  to  such  a  fact  is  not  ground  for  af- 
firmative equitable  relief.  The  following  illustrations  of  mistakes  as  to 
intrinsic  facts  essential  to  contracts,  against  which  courts  of  equity 
will  relieve,  are  found  in  the  books.  A.  buys  an  estate  of  B.  to  which 
the  latter  is  supposed  to  have  an  unquestionable  title.  It  turns  out, 
upon  due  investigation  of  the  facts,  that  B.  has  no  title;  in  such  a 
case,  equity  will  relieve  the  purchaser  and  rescind  the  contract :  Bing- 
ham V.  Bingham  (1  Vesey,  126).  If  a  horse  should  be  purchased, 
which  is  by  both  parties  believed  to  be  alive,  but  is,  at  the  time,  in  fact 
dead,  the  purchaser  would,  upon   the   same  ground,  be   released   by 


52  EEscissiON.  (Part  3 

rescinding  the  contract:     Allen  v.  Hammond   (11   Peters,  71).     If  a 
person  should  execute  a  release  to  another  party  upon  the  supposition, 
founded  on  a  mistake,  that  a  certain  debt  or  annuity  had  been  discharged 
although  both  parties  were  innocent,  the  release  would  be  set  aside: 
Hore  V.  Becher  (12  vSimons,  465).     If  one  should  execute  a  release  so 
broad  in  its  terms  as  to  release  his  rights  in  property,  of  which  he  was 
wholly  ignorant,  and  which  w^as  not  in  contemplation  of  the  parties 
at  the  time  the  bargain  for  the  release  was  made,  a  court  of  equity 
might  either  cancel  the  release  or  restrain  its  application  as  intended: 
(Cholmondeley  v.  Clinton,  2  Meriv.,  352;  Dungey   v.  Angove,  2  Ves., 
304).    On  the  other  hand,  if  the  vendee  is  in  possession  of  facts  which 
will  materially  enhance  the  price  of  the  commodity  and  of  which  he 
knows  the  vendor  to  be  ignorant,  he  is  not  bound  to  communicate  those 
facts  to  the  vendor,  and  the  contract  will  be  held  valid :  Laidlaw  v. 
Organ   (2  Wheat.,  178).     In  such  a  case  the  facts  unknown  to  the 
vendor  are  extrinsic  to  the  contract  and  are  not  of  its  substance ;  and 
hence  there  is  no  ground  for  the  interference  of  a  court  of  equity. 

It  is  clear  from  these,  and  other  illustrations  wdiich  might  be  given, 
that  a  court  of  equity  will  not  give  relief  in  all  cases  of  mistake.  There 
are  many  extrinsic  facts  surrounding  every  business  transaction  which 
have  an  important  bearing  and  influence  upon  its  results.  Some  of 
them  are  generally  unknown  to  one  or  both  of  the  parties,  and  if  known 
might  have  prevented  the  transaction.  In  such  cases,  if  a  court  of 
equity  could  intervene  and  grant  relief,  because  a  party  was  mistaken 
as  to  such  a  fact  which  would  have  prevented  him  from  entering  into 
the  transaction  if  he  had  known  the  truth,  there  would  be  such  un- 
certainty and  instability  in  contracts  as  to  lead  to  much  embarrassment. 
As  to  all  such  facts,  a  party  must  rely  upon  his  own  circumspection, 
examination  and  inquiry ;  and  if  not  imposed  upon  or  defrauded  he 
must  be  held  to  his  contracts.  In  such  cases,  equity  will  not  stretch 
out  its  arm  to  protect  those  who  suffer  for  the  want  of  vigilance. 


GOULD  V.  EMERSON. 

(Supreme  Court  of  Massachusetts,  1894,  160  Mass.  438,  35  N.  E.  1065.) 

Bill  in  equity,  filed  in  the  Superior  Court,  for  the  correction  of  a 
mistake  made  in  settling  the  accounts  of  a  partnership  between  the 
parties,  for  the  surrender  and  cancellation  of  a  promissory  note  given 


Cll.    7)  MISTAKE.  53 

in  pursuance  of  such  settlement,  and  for  the  payment  of  the  sum  found 
due  to  the  plaintiff  upon  the  taking  of  an  account.     .     .     . 

Allen,  J.    There  was  a  plain  mistake  in  the  giving  of  the  note  for 
$10,000  to  the  defendant.    It  should  have  been  for  only  $5,000.    There 
was  no  fraud,  but  it  was  a  case  of  mutual  mistake  as  to  the  manner 
of  carrying  out  what  had  been  settled  and  agreed  on.    Upon  dissolving 
the  partnership  between  the  plaintiff  and  the  defendant,  the  plaintiff" 
was  to  take  the  goods  on  hand  and  pay  the  defendant  for  his  interest 
therein.     The  value  of  the  goods  was  fixed  at  $16,000,  and  the  plain- 
tiff gave  to  the  defendant  his  note   for  $8,000,  and  this  has  been 
paid.     There  was  no  mistake  as  to  this.    But  the  plaintiff  had  with- 
drawn from  the  funds  of  the  firm  $10,000  more  than  the  defendant 
had,  and  to  make  thi^  right  between  the  parties  the  plaintiff  would 
have  to  restore  the  $10,000  to  the  firm,  or  pay  the  defendant  for  his 
share  thereof,  which  would  be  $5,000.    Instead  of  doing  this,  by  sheer 
inadvertence  or  ignorance  of  what  is  plain  when  you  come  to  look  at  it 
carefully,  the  plaintiff  gave  his  note   for  $10,000  to  the  defendant. 
This  gave  to  the  defendant  the  whole  of  a  sum  which  belonged  to  the 
firm,  and  which  he  was  entitled  to  only  one  half  of.     The  mistake, 
though  gross,  was  mutual  and  innocent ;  and  the  plaintiff  at  any  time 
upon  discovering  it  might  had  had  a  bill  in  equity  for  relief  against  it. 
Stockbridge  Iron  Co.  v.  Hudson  Iron  Co.,  107  Mass.  290,  319,  320; 
Canedy  v.  Marcy,   13  Gray,  373;  Wilcox  v.  Lucas,   121    Mass.  21; 
Goode  V.  Riley,  153  Mass.  585;  Beauchamp  v.  Winn,  L.  R.  6  H.  L. 
223;  Daniel  v.' Sinclair,  6  App.  Cas.  181,  190,  191 ;  Paget  v.  Marshall, 
28  Ch.  D.  255.     And  though  the  contract  has  been  executed,  a  court 
of  equity  may  grant  relief,  and  decree  repayment  of  money  so  paid 
by  mistake.    Tarbcll  v.  Bowman,  103  Mass.  341 ;  Wilson  v.  Randall, 
67  N.  Y.  338;  Paine  v.  Upton,  87  N.  Y.  327.     .     .     . 


GEE  V.  SPENCER. 

(In  Chancery,  1681,  1  Vern.  32.) 

A  man  possessed  of  a  lease  for  three  lives  of  the  rectory  of  Orping- 
ton in  Kent,  devi.sed  the  rectory  by  his  last  will;  l)ul  that  being  void, 
it  came  to  his  three  daughters  as  coheirs  and  special  occupants.  There 


54  RESCISSION.  (Part  3 

being  a  suit  touching  this  rectory  in  Chancery,  the  husband  of  one  of 
the  daughters  fearing  to  be  in  law,  and  being  made  to  beheve,  that  he 
should  be  forced  to  pay  costs,  releases  the  arrears  that  should  be  coming 
to  him  for  his  share  in  the  rectory  to  the  other  sisters,  who  were  to 
bear  the  charge  of  the  suit ;  his  share  of  the  arrears  amounted  to  ilOOO. 
This  release  was  set  aside,  and  Luxford's  case  cited  that  a  misappre- 
hension in  the  party  shall  avoid  his  release. 


BROUGHTON  v.  HUTT. 

(In  Chancery,  1858,  3  DeG.  &  J.  501.) 

This  was  an  appeal  from  a  decree  of  Vice-Chancellor  Stuart  direct- 
ing a  deed  of  indemnity  to  be  delivered  up  to  the  cancelled,  as  having 
been  executed  under  mistake  of  fact  and  law. 

The  plaintiff  was  the  heir-at-law  of  his  father  John  Vickery  Brough- 
ton,  who  had  been  a  shareholder  in  the  Western  Australian  Company. 
This  was  a  company  formed  for  the  purpose  of  purchasing  lands  in 
Western  Australia.  The  deed  of  settlement  of  the  company,  dated  the 
1st  of  March,  1841,  provided  among  other  things  as  follows:  "That 
every  shareholder  of  the  company,  his  executors  or  administrators,  as 
between  him  and  the  other  shareholders  and  their  respective  executors 
and  administrators,  shall  be  liable  for  or  in  respect  of  the  calls,  debts, 
losses,  and  damages  of  and  upon  the  company  in  proportion  to  his 
joint  or  separate  share  and  interest  for  the  time  being  in  the  funds  or 
property  of  the  company,  but  not  further  or  otherwise." 

The  103rd  article  provided  as  follows :  "That  all  the  property  of  the 
company  shall  be  deemed  personal  estate  and  be  transmissable  as  such, 
and  shall  not  be  deemed  to  be  of  the  nature  of  real  property." 

The  plaintiff's  father  died  in  June,  1850,  having  made  a  will  dated 
the  18th  of  April,  1850,  which  did  not,  however,  mention  the  shares. 
He  appointed  his  wife  and  his  two  daughters  executrixes  of  his 
will,  which  was  proved  by  the  wife  alone. 

Under  an  erroneous  impression  that  the  shares  were  in  the  nature 
of  real  estate,  it  was  considered  by  the  plaintiff  and  the  executrix  that 
the  testator  died  intestate  as  to  them,  and  that  they  belonged  to  the 
plaintiff  as  his  heir-at-law.    The  defendants,  who  were  trustees  of  the 


oil.    7)  MISTAKE. 


OD 


company,  knew  of  the  death  of  the  testator  shortly  after  it  took 
place,  and  before  the  date  of  the  indenture  next  mentioned,  and  re- 
ceived from  his  executors  in  that  character  a  payment  on  account  of  a 
call. 

The  company  having  become  involved  in  pecuniary  difficulties,  an 
indenture  was  executed  by  the  defendants,  by  the  plaintiff  and  by 
several  shareholders,  and  was  dated  the  30th  of  May,  1853.  It  recited 
that  the  several  persons,  parties  thereto,  of  the  first  part,  of  whom 
the  plaintiff  was  one,  were  respectively  shareholders  in  the  company. 
By  the  witnessing  part  each  of  the  parties  of  the  first  part  thereby 
for  himself,  his  heirs,  executors,  or  administrators,  but  not  further 
or  otherwise,  or  the  one  for  the  others  or  any  other  of  them,  covenant- 
ed with  the  parties  of  the  second  part,  their  executors,  administrators, 
and  assigns,  and  with  each  of  them,  his  executors,  administrators,  or 
assigns  separately,  that  in  the  event  of  certain  loans  being  raised  as 
in  the  deed  mentioned,  and  in  the  events  of  the  personal  guarantees  of 
the  said  persons,  parties  thereto,  of  the  second  part,  or  any  of  them, 
being  given  for  the  repayment  thereof,  and  of  any  loss  or  damage  what- 
soever being  occasioned  to  the  person  or  persons  giving  such  guarantee, 
or  any  of  them,  or  the  heirs,  executors,  or  administrators  of  them,  or 
any  of  them,  by  reason  of  such  guarantee,  then  and  in  such  case  and 
whensoever  the  same  should  happen,  he,  the  said  covenanting  party, 
his  heirs,  executors,  or  administrators,  would  ratably,  and  in  pro- 
portion to  the  number  of  shares  set  after  his  name,  and  within  the 
limit  thereinafter  mentioned,  indemnify  and  reimburse  such  persons 
or  person  incurring  any  such  loss  or  damage,  their  or  his  heirs,  execu- 
tors, administrators,  or  assigns,  respectively,  from,  for,  or  against  the 
same. 

The  plaintiff  stated  in  his  bill  and  affidavit,  that  when  he  executed 
this  deed  be  believed  that  the  three  shares  which  had  been  purchased 
by  his  late  father  belonged  to  him  as  his  fathers'  heir-at-law,  and  exe- 
cuted the  deed  under  that  belief  and  in  ignorance  of  the  provisions 
and  contents  of  the  deed  of  settlement ;  that  it  was  not  until  the 
month  of  November,  1857,  tiiat  he  became  aware  that  the  shares  did  not 
devolve  upon  him.  That,  in  consequence  of  the  company's  solicitors 
applying  for  payment  of  the  sum  of  £600,  the  plaintiff  consulted  his 
solicitors,  and  then,  for  the  first  time,  was  advised  that  lu'  had  no 
right  to  the  shares,  and  that  it  was  not  until  the  actions  about  to  be 


56  EEScissiON.  (Part  3 

mentioned  were  commenced  against  him  that  the  plaintiff  became 
aware  of  the  provisions  of  the  deed  of  settlement,  or  in  particular  of 
the  articles  above  set  out.     .     .     . 

The;    Lord    Justice    Knight    Bruce.       Whether    the    plaintiff 
has  a  case   for   relief   at   law   as   well   as   in   equity,    I   will   give   no 
opinion;  but  certainly  he  has  a  case  for  equitable  relief,  whether  he 
has  incurred  any  legal  liability  by  executing  the  deed  or  not.     It  is 
unimportant  for  all  the  purposes  of  this  suit  whether  the  plaintiff  is 
under  legal  liability  or  not.     I  doubt  whether  he  is ;  but,  however  that 
may  be,  it  makes  no  difference  to  his  claim  to  relief  in  equity.     It  is 
evident  that  he  executed  the  deed  under  a  mere  mistake  of  law  and  fact. 
Were  the  defendants  aware   of   the   real   circumstances   of   the   case 
when  they  procured  the  execution  of  this  deed  by  the  plaintiff,  with  no 
knowledge  on  his  part  of  its  contents  except  such  as  might  have  been 
obtained  from  reading  it  for  the  first  time  in  the  room?    It  is  impossi- 
ble that  the  defendants  can  be  heard  to  say  that  they  were  not  them- 
selves aware  of   the  circumstances.     Probably,  independently  of  the 
payment  of  the  call  by  persons  who  are  called  in  the  books  of  the 
company   "executors."   I   should  have  come  to  the   same   conclusion, 
but  that  fact  is  decisive.     The  defendants  could  not  but  have  know^n 
that  the  plaintiff  was  not  a  shareholder,  and  they  ought  not  to  have  al- 
lowed him  to  sign  the  deed,  without  apprising  him  of  the  fact.     I  am 
not  convinced  that  any  damage  has  accrued  or  will  accrue  to  the  de- 
fendants by  reason  of  the  plaintiff'  having  executed  the  deed.     But,'" 
assuming  that  some  damage  has  accrued  or  may  accrue  to  them,  it  is 
damage  which,  with  the  knowledge  of  the  circumstances  of  the  case, 
they  have  brought,  or  will  bring,  upon  themselves.     It  seems  to  me 
a  plain  case  for  relief,  and  the  appeal  must  therefore  be  dismissed 
with  costs. 


CLOWES  V.  HIGGINSON. 

(In  Chancery,  1813;  1  V.  &  B.  526.) 

The  Vice  Chancellor.  I  feel  great  difficulty  in  compelling  the 
Defendants  to  convey  upon  the  terms  now  proposed.  I  do  not  under- 
stand the  bill,  taken  altogether,  as  meaning  that  the  Plaintiff  is  ready 


Ch.    7)  MISTAKE.  57 

to  perform  the  agreement  according  to  any  construction  the  Court  may 
put  upon  it;  throwing  the  construction  upon  the  Court.  The  Plain- 
tiff lias  uniformly  contended,  hoth  at  the  Rolls  and  here,  from  tlie 
commencement  of  these  suits  to  the  last  decree,  that  he  never  made, 
or  intended,  any  agreement  but  to  take  the  estate  with  the  timber 
upon  it,  with  the  exception  of  Lots  4  and  5 ;  and  as  evidence  of  that  he 
adduces  this  paper ;  to  make  out  his  construction.  This  is  not  like  the 
case,  to  which  it  has  been  compared ;  a  Plaintiff  calling  upon  the  Court 
to  construe  and  execute  a  will  according  to  the  true  construction ;  sug- 
gesting that,  which  he  conceives  to  be  so ;  but  this  Plaintiff  merely 
submits  to  perform  the  agreement,  as  he  intended  it ;  according  to  the 
true  intention,  as  he  represents  it ;  that  is.  to  have  the  timber  with  the 
estate;  never  meaning  to  pay  for  the  timber  separately.  The  De- 
fendants insist  on  the  contrary  construction,  as  that,  which  was  in- 
tended by  them.  Though  there  is  but  one  paper  referred  to,  contain- 
ing the  particulars,  conditions,  and  declarations,  in  truth  there  are 
two  distinct  and  opposite  agreements,  one  insisted  on  by  each  party, 
as  evidenced  by  that  paper ;  the  one  including,  the  other  excluding, 
the  timber.  In  such  a  case  of  mutual  mistake,  the  one  not  intending 
to  sell  what  the  other  meant  to  buy,  the  Court,  feeling  the  injustice 
of  giving  to  either  a  performance  upon  terms  to  which  the  other  never 
agreed,  has  come  to  the  conclusion,  that  there  is  no  contract  between 
them ;  that  they  did  not  rightly  understand  each  other ;  and  therefore 
it  is  not  possible  without  consent  to  compel  either  to  take  what  the 
other  has  offered.  This  Plaintiff  having  uniformly  up  to  the  hearing 
insisted  on  his  construction,  as  the  only  contract  between  them,  not 
offering  to  take  up  the  other  construction,  which  the  Defendant  was 
at  one  time  willing  to  have  performed,  it  is  perfectly  different  from 
calling  upon  the  Court  to  declare  the  true  construction,  and  submit- 
ting to  perform  according  to  that.  The  Court,  having  in  both  instances 
considered  the  transaction  as  too  ambiguous  to  form  the  foundation  of 
a  contract,  cannot  now  take  this  passage  in  the  answer  as  the  ground 
of  a  decree  for  specific  performance  against  the  will  of  the  Defendants ; 
and  compel  them  to  accept  terms  which  they  once  offered,  but  to  which 
the  other  party  would  not  then  consent. 

The  bill  must  therefore  stand  dismissed  without  costs. 


58  EESCissioN.  (Part  3 


LYMAN  V.  UNITED  INSURANCE  COMPANY. 

(New  York  Court  of  Errors,  1819,  17  Johns.  373.) 

Spe;nce;r,  Ch.  J.  The  principles  which  must  govern  this  case 
are,  in  my  apprehension,  very  plain  and  simple.  The  appellants  seek 
to  have  a  policy  of  insurance  amended,  after  a  loss  has  happened,  on 
the  ground  of  a  mistake  in  the  policy  in  several  particulars,  but  prin- 
cipally in  this,  that  the  brig  insured  by  the  respondents,  is  described 
in  the  policy  as  the  "good  American  brig,  called  the  Union/'  when,  as 
it  is  alleged,  it  was  the  intention  of  the  appellants,  and  must  have 
been  so  understood  by  the  respondents,  that  her  national  character 
should  be  Portuguese.     ... 

It  is  not  enough,  in  cases  of  this  kind,  to  show  the  sense 
and  intention  of  one  of  the  parties  to  the  contract;  it  must  be  shown, 
incontrovertibly,  that  the  sense  and  intention  of  the  other  party  con- 
curred in  it ;  in  other  words,  it  must  be  proved,  that  they  both  under- 
stood the  contract,  as  it  is  alleged  it  ought  to  have  been,  and  as  in 
fact  it  was,  but  for  the  mistake.  It  would  be  the  height  of  injustice 
to  alter  a  contract,  on  the  ground  of  mistake,  where  the  mistake  arises 
from  misconception  by  one  of  the  parties,  in  consequence  of  his  im- 
perfect explanation  of  his  intentions.  To  make  a  contract,  it  is  req- 
uisite that  the  minds  of  the  contracting  parties  agree  on  the  act  to 
be  done;  if  one  party  agrees  to  a  contract  under  particular  modifi- 
cations, and  the  other  party  agrees  to  it  under  different  modifications, 
it  is  evident  there  is  no  contract  between  them.  If  it  be  clearly  shown, 
that  the  intention  of  one  of  the  parties  is  mistaken  and  misrepresented 
by  the  written  contract,  that  cannot  avail,  unless  it  further  be  shown, 
that  the  other  party  agreed  to  it  in  the  same  way,  and  that  the  intention 
of  both  of  them  was,  by  mistake,  misrepresented  by  the  written  con- 
tract. There  may  be  cases  in  which  the  mistake  is  rendered  so  palp- 
able, that  the  denial  of  it  by  one  party  would  not  be  entitled  to  credit. 
The  question  would  be,  how  it  ought  to  have  been  understood,  and 
how  the  court  believe  it  must  have  been  understood. 

I  confess,  that  I  am  strongly  impressed  with  the  belief,  that  when 
the  appellants  applied  to  the  respondents  for  insurance,  they  intended, 
by  the  representation,  that  "the  said  brig  will  sail  under  a  Portuguese 


Ch.    7)  MISTAKE.  59 

royal  passport,"  that  her  national  character  was  to  be  Portuguese. 
But  I  am  as  strongly  persuaded,  that  the  respondents  did  not  under- 
stand the  representation  in  that  way.  but,  on  the  contrary,  that  they 
believed  she  was  to  be  documented  as  an  American  ship,  carrying  a 
Portuguese  passport,  as  an  innocent  disguise  of  her  real  American 
character :  and  that,  consequently,  the  appellants  have  failed  in  making 
out  the  fact,  that  there  was  a  mutual  mistake  in  the  policy.     .     .     . 


SWEDESBORO  LOAN  &  BLDG.  ASS'N.  v.  GANS 

(New  Jersey  Court  of  Chancery,  1903,  65  N.  J.  Eq.  132,  55  Atl.  82.) 

Reed,  V.  C.  This  suit  is  brought  to  have  a  mortgage  which  has 
been  cancelled  upon  the  record  re-established  and  foreclosed.  The 
facts,  as  I  gather  them  from  the  pleadings,  from  the  meagre  testimony 
and  from  the  position  taken  by  counsel,  are  as  follows :  One  Charles 
Gans,  of  Gloucester  county,  made  a  mortgage,  dated  March  11th, 
1892,  to  the  Swedeshoro  Loan  and  Building  Association  to  secure  the 
sum  of  $1,100,  payable  in  one  year.  Charles  Gans,  the  mortgagor, 
died  June  9th,  1894,  intestate,  leaving  him  surviving  his  widow,  Kate 
P.  Gans,  and  as  his  heirs,  two  brothers — James  and  John — and  three 
sisters — Jennie,  Phebe  and  Mary. 

On  April  1st,  1895,  the  widow  released  to  the  complainants  her  right 
of  dower  in  the  mortgaged  premises.  The  complainant  accepted  a 
deed  from  one  Sebastian  Gans,  the  father  of  Charles,  the  deceased 
mortgagor,  under  the  belief  that  on  the  death  of  Charles  the  property 
descended  to  his  father.  After  the  execution  of  this  deed,  the  loan 
and  building  association,  believing  that  it  held  the  legal  title  to  the 
premises,  on  August  5th,  1895,  cancelled  its  mortgage.  The  procura- 
tion of  the  deed  from  Sebastian  Gans  seems  to  have  been  accomplish- 
ed by  one  Benjamin  McAllister,  who  was  a  scrivener  and  was  at  one 
time  a  director  of  the  building  association  and  did  writing  for  them, 
and  who  seems  also  to  have  been  mixed  up  in  the  settlement  of  the 
estate  of  Charles  Gans.  He  apparently  acted  as  intermediary  between 
the  building  association  and  the  Ganses,  and  got  the  deed  which  the 
complainant  accepted  upon  his  word  as  a  conveyance  of  the  equity  of 
redemption  in  the  mortgaged  premises.  Upon  the  execution  of  this 
deed  the  complainant  went  into  possession,  and  has  since  received  the 


60  EEscissiON.  (Part  3 

rents  and  profits  therefrom.  There  can  be  no  doubt  that  the  cancella- 
tion of  the  mortgage  was  induced  by  the  belief  that  by  force  of  the 
deed  of  Sebastian  Gans  the  land  association  owned  a  complete  title 
to  the  property. 

It  is  thus  manifest  that  the  equity  of  the  situation  is  entirely  with 
the  complainant.  The  defendants,  as  heirs  of  Charles  Gans,  received 
the  property  subject  to  the  lien  of  this  mortgage.  The  cancellation 
of  the  mortgage  was  a  pure  gift  to  the  defendants  of  the  mortgagee's 
interest  in  the  property.  The  heirs  had  not  paid  one  cent  to  bring 
about  this  change  in  the  respective  position  of  mortgagee  and  heirs. 

Neither  has  any  purchaser,  bojia  fide  or  otherwise,  come  into  ex- 
istence upon  the  faith  of  the  cancellation  of  the  mortgage. 

It  is  clear,  therefore,  that  unless  some  inexorable  rule  compels 
otherwise,  the  complainant  should  be  relieved  from  the  predicament 
into  which  it  was  misled  by  its  belief  in  its  ownership  of  a  complete 
title  to  the  mortgaged  property. 

The  substantial  ground  upon  which  the  heirs  resist  the  granting  of 
this  relief  is  that  while  the  cancellation  was  caused  by  a  mistake  of  the 
complainant,  it  was  a  mistake  of  law  and  not  of  fact.  The  maxim 
juris  ignorantia  non  cxcusaf  is  invoked  by  the  defendants.  This 
maxim  is  subject  to  so  many  exceptions  that  it  is  quite  as  often  inap- 
plicable to  supposed  mistakes  of  law. 

That  the  present  case,  involving  the  release  of  private  rights  under 
a  mistaken  notion  as  to  private  ownership  of  property,  is  one  in  which 
the  English  courts  of  chancery  would  afford  prompt  relief  cannot 
be  doubted.  The  line  of  cases  granting  relief  where  a  man  purchased 
his  own  property  through  mistake  (Bingham  v.  Bingham,  1  Ves.  Sr. 
127),  or  where  a  release  was  made  so  broad  in  its  terms  as  to  release 
rights  of  property  of  which  the  party  was  ignorant  (Chalmondeley  v. 
Clinton,  2  Mer.  171),  or  where  a  party,  under  the  misapprehension 
that  he  had  no  title,  surrendered  to  the  supposed  owner  (Pusey  v.  Des- 
bouvrie,  3  P.  Wms.  315),  exhibit  the  degree  in  which  courts  of  equity 
granted  relief  from  such  mistakes.  In  Livesey  v.  Livesey,  3  Russ. 
287,  an  executrix,  who  under  a  mistaken  construction  of  a  will,  had 
overpaid  an  annuity,  was  permitted  to  deduct  the  amount  overpaid 
from  subsequent  payments.  In  McCarthy  v.  Decaix,  2  Russ.  &  M. 
614,  a  person  was  relieved  where  he  had  renounced  a  claim  of  prop- 
erty made  under  a  mistake  respecting  the  validity  of  a  marriage,  the 


Ch.    7)  MISTAKE.  61 

lord-chancellor  saying:  "What  he  has  done  was  in  ignorance  of  the 
law,  possibly  of  fact ;  bnt  in  a  case  of  this  kind  this  would  be  one 
and  the  same  thing." 

In  Cooper  v.  Phibbs,  L.  R.  2  H.  L.  149,  172;  S.  C,  22  Eng.  Rul. 
Cas.  870,  an  agreement  was  cancelled  because  it  had  been  entered  into 
through  a  mistake  as  to  the  ownership  of  a  fishery.  In  this  case  Lord 
Westbury  expressed  the  much-discussed  sentiment  that  the  w'ord 
"jus"  in  the  maxim  is  used  to  denote  a  general  law,  and  has  no  appli- 
cation to  private  rights.  The  result  of  this  decision  of  the  house  of 
lords  was  that  an  act  caused  through  a  mistake  as  to  ownership  of  prop- 
erty would  be  remedied  in  equity.  In  Beauchamp  v.  Winn,  L.  R. 
6  H.  L.  223,  264;  S.  C.  22  Eng.  Rul.  Cas.  889,  a  mutual  mistake  in  an 
agreement  as  to  the  rights  of  the  parties  resulted  in  a  correction  of 
the  agreement. 

The  result  of  the  English  cases  is  summed  up  by  Mr.  Kerr  in  the 
remark  "that  if  a  man  though  misapprehension  or  mistake  of  the  law 
parts  with  or  gives  up  private  rights  to  property,  or  assumes  obliga- 
tions upon  grounds  upon  which  he  would  not  have  acted  but  for  such 
misapprehension,  a  court  of  equity  may  grant  relief,  if  under  the  gen- 
eral consideration  of  the  case  it  is  satisfied  that  the  party  benefited 
by  the  mistake  cannot  in  conscience  retain  the  benefit  or  advantage 
so  acquired."  Kerr,  Fr.  This  statement  of  the  equitable  rule  was  cited 
with  apparent  approval  by  Chancellor  Runyon  in  Macknet  v.  Macknet. 
2  Stew\  Eq.  54,  59,  and  in  Martin  v.  New  York,  Susquehanna  and 
Western  Railroad  Co.,  9  Stew.  Eq.  109,  112. 

The  equity  cases  in  this  country,  more  particularly  the  earlier 
cases,  exhibit  a  less  liberal  spirit  in  granting  relief  for  mistakes  in  law. 
This  resulted  mainly,  T  think,  from  the  great  influence  which  the 
early  reported  cases  decided  by  Chancellor  Kent  had  in  shaping  the 
early  equity  jurisprudence  of  this  country. 

The  case  of  Lyon  v.  Richmond,  2  John.  Ch.  60,  was  an  application 
to  set  aside  an  agreement,  because  it  was  entered  into  under  the  in- 
fluence of  a  supposed  condition  of  the  law,  and  afterwards  the  court 
of  errors  rendered  a  decision  which  changed  the  law  as  it  was  sup- 
posed to  exist  when  the  agreement  was  made.  In  deciding  that  the 
court  could  grant  no  relief.  Chancellor  Kent,  having  in  mind,  of 
course,  the  particular  facts  of  that  case,  made  some  general  remarks 
in  respect  to  the  impolicy  of  a  court  of  e(iuity  attempting  to  relieve 


62 


EESCTSSION-.  (Part 


o 


against  mistakes  of  law.  These  remarks  appear  again  and  again  in 
the  earlier  cases,  being  used  as  a  general  authority  against  the  granting 
of  relief  in  all  cases  of  mistakes  of  law.     ... 

Our  later  cases  display  a  desire  to  discover  ground  to  rectify  an 
equitable  result  flowing  from  mistakes  of  all  kinds.     ... 

The  ability  of  courts  of  equity  to  rectify  mistakes  arising 
from  ignorance  of  the  law  is  everywhere  acknowledged  to  exist  in 
certain  instances.  The  propriety  of  exercising  this  power  must  de- 
pend upon  the  circumstances  which  surround  each  case.  It  will  de- 
pend upon  whether  a  party  who  asks  relief  has  been  negligent ;  whether 
he  has  been  led  into  his  belief  by  the  other  party;  whether  other  in- 
nocent parties  will  be  injured  by  a  rectification  of  the  mistake,  or 
whether  the  mistake  can  be  regarded  as  one  of  fact,  although  indirect- 
ly resulting  from  a  mistaken  notion  of  the  law.  All  these  and  other 
features  are  to  be  considered  in  deciding  whether  it  is  equitable  and 
politic  to  put  the  mistaken  party  in  statu  quo.     .     .     . 

In  my  judgment  the  power  should  be  exercised  in  the  present 
case.  The  mistake  was  in  respect  to  the  ownership  of  the 
property  upon  which  the  cancelled  mortgage  was  an  encumbrance, 
and  the  English  cases  treat  such  a  mistake  as  one  of  fact. 

Again,  the  annulment  of  the  mortgage  was  without  any  consideration 
whatever.  Nothing  was  received  by  the  mortgagee  and  nothing  was 
paid  by  the  heirs. 


JORDAN  V.  STEVENS. 

(Supreme  Court  of  Maine,  1863,  51  Me.  78.) 

Davis,  J.  .  .  .  But  while  the  weight  of  authority  is  clearly 
against  granting  relief  merely  on  account  of  a  mistake  of  the  law, 
it  seems  to  be  conceded  in  nearly  all  the  cases,  and  expressly  de- 
cided in  many  of  them,  that  there  are  exceptions  to  this  rule.  Hunt 
V.  Rousmanier,  1  Pet.,  15;  Bank  of  U.  S.  v.  Daniel,  12  Pet.,  32. 

Instead  of  saying  that  there  are  "exceptions"  to  the  rule,  it  would 
probably  be  more  correct  to  say  that,  while  relief  will  never  be  granted 
merely  on  account  of  the  mistake  of  the  law,  there  are  cases  where 
there  are  other  elements,  not  in  themselves  sufficient  to  authorize  the 
Court  to  interpose,  but  which,  coinbined  zvith  such  a  mistake,  will 


Ch.    7)  MISTAKE.  63 

entitle  the  party  to  relief.  It  is  important  therefore  to  inquire  zvhat  it  is 
that,  with  a  mistake  of  the  lazi',  will  justify  the  interposition  of  the 
Court,  where  there  is  no  fraud,  or  accident,  or  mistake  of  fact. 

If  a  party,  who  himself  knows  the  law,  should,  deceive  another,  by 
misrepresenting  the  law  to  him ;  or,  knoiving  him  to  be  ignorant  of  it, 
should  therein  take  advantage  of  him,  relief  would  be  granted  on  the 
ground  of  fraud.  So  that  such  a  case  is  within  neither  the  rule  nor 
the  exception. 

It  has  sometimes  been  said  that,  when  money  or  other  property  has 
been  obtained  under  a  mistake  of  the  law,  which  the  defendant  ought 
not  in  good  conscience  to  retain,  he  should  be  compelled  to  restore  it. 
Northrup  v.  Graves,  19  Conn.,  548;  Stedwell  v.  Anderson,  21  Conn., 
139.  This  is  just,  as  a  principle,  but  entirely  indefinite,  as  a  rule.  It 
proposes  nothing  but  the  opinion  of  the  Court  in  each  case,  on  a 
matter  in  regard  to  which  there  may  be  great  differences  of  opinion.  It 
overlooks  the  public  interests  involved  in  maintaining  the  obligation 
of  contracts.  Generally,  as  between  the  parties,  a  mistake  of  laiv  has 
as  equitable  a  claim  to  relief,  as  a  mistake  of  fact. 

It  is  believed  that  in  nearly  all  such  cases,  where  relief  has  been 
granted,  in  addition  to  the  intrinsic  equity  in  favor  of  the  plaintifif, 
two  facts  have  been  found ;   ( 1 ) ,  that  there  has  been  a  marked  dis- 
parity in  the  position  and  intelligence  of  the  parties,  so  that  they  have 
not  been  on  equal  terms;  (2),  and  that  the  party  obtaining  the  prop- 
erty persuaded  or  induced  the  other  to  part  with  it,  so  that  there  has 
been  "undue  influence"  on  the  one  side,  and  "undue  confidence  on  the 
other.     1  Story's  Eq.,  120.     When  property  has  been  obtained  under 
such  circumstances,  and  by  such  means,  courts  of  equity  have  never 
hesitated  to  compel  its  restoration,  though  both  the  parties  acted  under 
a  mistake  of  the  law.     And  there  would  be  still  stronger  reasons  for 
granting  relief  in  such  a  case,  if  the  party  from  whom  the  property  had 
been  obtained,  had  been  led  into  his  mistake  of  the  lazv  by  the  other 
party.     Sparks  v.  White.  7  Hump.,   (Tenn.,)  86;  Fitzgerald  v.  Peck, 
4Littell,  (Ky..)  127. 

Thus,  in  Pickering  v.  Pickering,  2  Beav.,  31,  Lord  Langdale  set 
aside  certain  agreements  entered  into  under  a  mistake  of  the  law.  on 
the  ground  that  "the  parties  were  not  on  equal  terms ;"  and  that  the 
plaintifif  acted  under  the  influence  of  the  defendant.  And  the  same 
thing  was  done  in  Wheeler  v.  Smith,  9  Mow.  U.  S.,  55,  because  the 


64  EEscissioisr.  (Part  3 

parties  "did  not  stand  on  equal  ground ;"  and  the  plaintiff  "did  not  act 
freely,  and  with  a  proper  understanding  of  his  rights."     .     .     . 

The  case  at  bar  is  one  of  this  kind.  The  parties  were  not  on  equal 
terms.  The  plaintiff  was  ignorant,  in  business  affairs,  as  well  as  m 
other  respects.  Having  confidence  in  the  defendants  she  relied  upon 
what  they  told  her.  It  does  not  appear  that  she  doubted  the  validity 
of  her  father's  lease  to  her,  until  such  doubts  were  communicated 
to  her  from  them.  The  proposition  for  her  to  release  her  interest 
in  all  the  other  property  did  not  originate  with  her,  but  with  them;  and 
she  was  induced  to  accept  it  by  the  fear,  which  they  had  impressed 
upon  her,  that  she  otherwise  would  have  to  give  up  the  homestead.  She 
acted  under  their  influence.  They  believed  that  there  was  a  defect  in 
the  first  lease,  and  they  meant  to  take  advantage  of  it.  As  was  said 
by  the  Master  of  the  Rolls,  afterwards  Lord  Kenyon,  in  Evans  v. 
Llewellyn,  1  Cox,  ZZZ,  "though  there  was  no  fraud,  there  was  some- 
thing like  fraud ;  for  an  undue  advantage  was  taken  of  her  situation. 
The  party  was  not  competent  to  protect  herself ;  and  therefore  this 
Court  is  bound  to  afford  her  such  protection."     .     .     . 


GRYMEvS  V.  SANDERS. 

•   (United   States  Supreme  Court,   1876,  93  U.   S.   55.) 

Swayne;,  J.  .  .  .  Peyton  Grymes,  the  appellant,  owned  two 
tracts  of  land  in  Orange  County,  Va.,  lying  about  twenty-five  miles 
from  Orange  court-house.  The  larger  tract  was  regarded  as  valuable 
on  account  of  the  gold  supposed  to  be  upon  it.  The  two  tracts  were 
separated  by  intervening  gold-bearing  lands,  which  the  appellant  had 
sold  to  others.  Catlett  applied  to  him  for  authority  to  sell  the  two 
tracts,  which  the  appellant  still  owned.  It  was  given  by  parol;  and 
the  appellant  agreed  to  give,  as  Catlett's  compensation,  all  he  could 
get  for  the  property  above  $20,000.  Catlett  offered  to  sell  to  Lan- 
agan.  Lanagan  was  unable  to  spare  the  time  to  visit  the  property, 
but  proposed  to  send  Howel  Fisher  to  examine  it.  This  was  assented 
to;  and  Catlett  thereupon  wrote  to  Peyton  Grymes,  Jr.,  the  son  of 
the  appellant,  to  have  a  conveyance  ready  for  Fisher  and  himself 
at   the   court-house   upon   their   arrival.      The   conveyance    was   pro- 


Ch.    7)  MISTAKE.  65 

vided  accordingly,  and  Peyton  Grymes,  Jr.,  drove  them  to  the  lands. 
They  arrived  after  dark,  and  stayed  all  night  at  a  house  on  the 
gold-bearing  tract.  Fisher  insisted  that  he  must  be  back  at  the  court- 
house in  time  to  take  a  designated  train  east  the  ensuing  day.  This 
involved  the  necessity  of  an  early  start  the  next  morning.  It  was 
arranged  that  Peyton  Grymes,  Jr.,  should  have  Peyton  Hume,  who 
lived  near  at  hand,  meet  Fisher  on  the  premises  in  the  morning  and 
show  them  to  him,  while  Grymes  got  his  team  ready  for  their  re- 
turn to  the  court-house.  Hume  met  Fisher  accordingly,  and  showed 
him  a  place  where  there  had  been  washing  for  surface-gold,  and  then 
took  him  to  an  abandoned  shaft,  which  he  supposed  was  on  the  prem- 
ises.    .     .     . 

When  Fisher  made  the  examination  at  the  shaft,  it  had  been  aban- 
doned.    This  was  prima  facie  proof  that  it  was  of  no  account.     It 
does  not  appear  that  he  thought  of  having  an  analysis  made  of  any  of 
the  debris  about  it,  nor  that  the  debris  indicated  in  any   wise  the 
presence  of  gold.     He  requested  Hume  to  send  him  specimens  from 
the  shafts  on  the  contiguous  tracts,  and  it  was  done.     No  such  re- 
quest was  made  touching  the  shaft  in  question,  and  none  were  sent. 
It  is  neither  alleged  nor  proved  that  there  was  a  purpose  at  any  time, 
on  the  part  of  the  appellees,  to  work  the  shaft.     The  quartz  found 
was  certainly  not  more  encouraging  than  that  taken  from  the  last 
cut  made  by  Bowman  under  the  advice  of  Embry  and  Johnson.    This 
cut  he  refused  to  deepen,  and  abandoned.     When  Lanagan  and  Rep- 
plier  were  told  by  Johnson  that  the  shaft  was  not  on  the  premises, 
they  said  nothing  about  abandoning  the  contract,  and  nothing  which 
manifested  that  they  attached  any  particular  consequence  to  the  mat- 
ter, and  certainly  nothing  which  indicated  that  they  regarded  the  shaft 
as  vital  to  the  value  of  the  property.     They  proceeded  with  their  ex- 
ammation  of  the  premises  as  if  the  discovery  had  not  been  made. 
On  his  way  to  Philadelphia,  after  this  visit,  Lanagan  saw  and  talked 
several  times  with  Williams,  who  had  prepared  the  deed.     Williams 
says,  "I  cannot  recollect  all  that  was  said  in  those  conversations,  but 
I  do  know    that    nothing    was    said    about    the    shaft,    and    that    he 
said  nothing  to  produce  the  impression  that  he  was  dissatisfied  or  dis- 
appointed  in   any   respect   with   the   property   after   the   examination 
that  he  had  made  of  it."     Lanagan's  conversation  with  Houseworth 
was  to  the  same  effect. 
3  Eq— 5 


6G  RESCISSION.  (Part  '6 

The  subsequent  conduct  of  the  appellees  shows  that  the  mistake 
had  no  effect  upon  their  minds  for  a  considerable  period  after  its 
discovery,  and  then  it  seems  to  have  been  rather  a  pretext  than  a 
cause. 

Mistake,  to  be  available  in  equity,  must  not  have  arisen  from  neg- 
ligence, where  the  means  of  knowledge  were  easily  accessible.  The 
party  complaining  must  have  exercised  at  least  the  degree  of  dil- 
igence "which  may  be  fairly  expected  from  a  reasonable  person." 
Kerr  on  Fraud  and  Mistake,  407. 

Fisher,  the  agent  of  the  appellees,  who  had  the  deed  prepared,  was 
within  a  few  hours'  travel  of  the  land  when  the  deed  was  executed. 
He  knew  the  grantor  had  sold  contiguous  lands  upon  which  veins 
of  gold  had  been  found,  and  that  the  course  and  direction  of  those 
veins  were  important  to  the  premises  in  question.  He  could  easily 
have  taken  measures  to  see  and  verify  the  boundary-lines  on  the 
ground.  He  did  nothing  of  the  kind.  The  appellees  paid  their  money 
without  even  inquiring  of  any  one  professing  to  know  where  the  lines 
were.  The  courses  and  distances  specified  in  the  deed  show  that  a 
surveyor  had  been  employed.  Why  was  he  not  called  upon?  The 
appellants  sat  quietly  in  the  dark,  until  the  mistake  was  developed  by 
the  light  of  subsequent  events.  Full  knowledge  was  within  their  reach 
all  the  time,  from  the  beginning  of  the  negotation  until  the  trans- 
action was  closed.  It  was  their  own  fault  that  they  did  not  avail 
themselves  of  it.  In  Manser  v.  Davis,  6  Ves.  678,  the  complainant, 
being  desirous  to  become  a  freeholder  in  Essex,  bought  a  house  which 
he  supposed  to  be  in  that  county.  It  proved  to  be  in  Kent.  He  was  com- 
pelled in  equity  to  complete  the  purchase.  The  mistake  there,  as 
here,  was  the  result  of  the  v/ant  of  proper  diligence.     .     .     . 

A  court  of  equity  is  always  reluctant  to  rescind,  unless  the  parties 
can  be  put  back  in  statu  quo.  If  this  cannot  be  done,  it  will  give  such 
relief  only  where  the  clearest  and  strongest  equity  imperatively  de- 
mands it.  Here  the  appellant  received  the  money  paid  on  the  con- 
tract in  entire  good  faith.  He  parted  with  it  before  he  was  aware  of 
the  claim  of  the  appellees,  and  cannot  conveniently  restore  it.  The 
imperfect  and  abortive  exploration  made  by  Bowman  has  injured 
the  credit  of  the  property.  Times  have  since  changed.  There  is  less 
demand  for  such  property,  and  it  has  fallen  largely  in  market  value. 
Under  the  circumstances,  the  loss  ought  not  to  be  borne  by  the  ap- 


Ch.    7)  FKAUDS.  67 

pellant.  Hunt  v.  Silk,  5  East.  452;  Mintiirn  v.  Main,  3  Seld.  227; 
Okill  V.  Whittaker,  2  Phill.  340;  Brisbane  v.  Davies,  5  Taunt.  144; 
Andrews  v.  Hancock,  1  Brod  &  B.  37;  Skyring  v.  Greenwood,  4  Barn. 
&  C.  289;  Jennings  v.  Broughton,  5  De  G.,  M.  &  G.  139. 

The  parties,  in  dealing  with  the  property  in  question,  stood  upon 
a  footing  of  equality.  They  judged  and  acted  respectively  for  them- 
selves. The  contract  was  deliberately  entered  into  on  both  sides. 
The  appellant  guaranteed  the  title,  and  nothing  more.  The  appellees 
assumed  the  payment  of  the  purchase-money.  They  assumed  no  other 
liability.  There  was  neither  obligation  nor  liability  on  either  side, 
beyond  what  was  expressly  stipulated.  If  the  property  had  proved 
unexpectedly  to  be  of  inestimable  value,  the  appellant  could  have  no 
further  or  other  claim.  If  entirely  worthless,  the  appellees  assumed 
the  risk,  and  must  take  the  consequences.  Segur  .v.  Tingley,  11 
Conn.  142;  Haywood  v.  Cope,  25  Beav.  140;  Jennings  v.  Broughton, 
17  id.  232;  Atwood  v.  Small,  6  CI.  &  Fin.  497;  Marvin  v.  Bennett,  8 
Paige,  321;  Thomas  v.  Bartow,  48  N.  Y.  198;  Hunter  v.  Goudy,  1 
Ham.  451 ;  Halls  v.  Thompson,  1  Sm.  &  M.  481. 

The  bill,  we  have  shown,  cannot  be  maintained.     .     .     . 


SECTION  II.  FRAUD 


JACK  V.  BLETTNER. 

(Illinois  Appellate  Court,  1909,  148  111.  App.  451.) 

Defendant  Fred  S.  Gray  claimed  to  own  a  saloon  and  liquor  store 
at  No.  3865  Cottage  Grove  avenue,  of  which  he  was  in  possession, 
of  the  value  of  $5,000.  On  April  13,  1907,  complainant  was  in  the 
saloon  of  Gray,  who  then  represented,  for  the  purpose  of  inducing 
complainant  to  purchase  a  half  interest  therein,  that  the  business  con- 
ducted in  said  saloon  was  very  profitable  and  that  the  gross  receipts 
were  free  from  liens  and  encumbrances;  that  all  of  said  n-prt'smta- 
tions  were  false  when  made,  and  so  known  to  be  false  by  Gray  when 
he  made  them;  that  in   fact  the  receipts  of   said  saloon   were  small 


68  RESCISSION.  (Part  3 

and  barely  sufficient  to  pay  running  expenses ;  that  the  saloon  and  its 
contents  were  mortgaged  for  a  large  sum  to  the  Berghoff  Brewing 
Company  of  Chicago ;  that  Gray,  in  furtherance  of  carrying  out  his 
fraudulent  scheme,  and  to  deceive  and  prevent  complainant  from  in- 
quiry into  the  true  condition  and  situation  of  said  saloon  business, 
induced  complainant  to  partake  freely  of  intoxicating  liquoi*,  which 
he  did  to  such  an  extent  that  he  became  drunk  and  "intoxicated  and 
totally  unable  to  intelligently  transact  business ;  that  wdiile  in  such 
drunken  state  Gray  induced  complainant  to  pay  him  the  sum  of  $100 
in  money,  and  to  assign  and  deliver  to  him  a  promissory  note  made 
by  defendant  Bowyer,  payable  on  September  15,  1907,  to  the  order 
of  his  sister-in-law,  the  defendant  Maud  H.  Jack,  for  the  sum  of 
$500,  which  note  Maud  H.  Jack  had  endorsed  and  delivered  to  him; 
that  he  was  induced  to  pay  said  money  and  deliver  said  note  as 
earnest  money  for  a  half  interest  in  Gray's  saloon  and  business,  and 
pending  the  time  during  which  complainant  could  examine  into  the 
title  of  Gray  to  the  saloon  property ;  that  complainant  did  not  receive 
any  receipt  for  said  payments  or  any  bill  of  sale  or  other  conveyance 
of  any  interest  in  the  saloon  of  Gray ;  that  the  intoxication  of  com- 
plainant was  so  profound  that  he  became  unconscious  and  in  such 
unconscious  condition  was  taken  to  his  home,  and  as  a  result  of  such 
intoxication  he  became  sick  and  remained  confined  to  his  home  and 
his  bed  for  several  weeks  thereafter ;  that  upon  recovering  from  his 
sickness  he  learned  that  the  Berghoff  Brewing  Company  had  fore- 
closed its  mortgage  upon  the  saloon  and  its  contents  and  ousted  Gray 
from  possession  thereof ;  that  on  maturity  of  the  note  defendant 
Blettner,  claiming  to  be  its  legal  owner,  through  his  attorneys,  the 
defendants  Hebel  and  Haft,  commenced  suit  thereon,  in  the  Municipal 
Court  of  Chicago,  against  Gray,  Maud  H.  Jack  and  complainant  as 
endorsers,  and  Bowyer  as  maker  of  the  note ;  that  defendant  Blettner 
was  the  agent  of  the  Berghoff  Brewing  Company  and  was  not  an 
innocent  purchaser  for  value,  but  was  privy  to  the  frauds  practiced 
upon  complainant,  by  which  the  transfer  of  the  note  was  procured 
to  Gray,  and  was  present  in  Gray's  saloon  at  the  time  of  the  trans- 
action and  witnessed  the  artifices  resorted  to  by  Gray  in  procuring 
the  note  and  the  money  from  complainant;  that  Blettner  paid  no 
consideration  to  Gray  for  said  note;  that  no  defendant  other  than 
Bowyer  was  summoned  in  the  suit  brought  in  the  Municipal  Court 
on  the  note.     .     .     . 


Cll.    7)  FRAUDS.  69 

Mr,  Justice;  Holdom.  \\'e  think  it  quite  plain  that  the  aver- 
ments of  complainant's  bill  being  conceded  to  be  true,  the  facts 
there  alleged  make  it  patent  that  his  remedy,  if  any,  is  at  law  and 
not  in  equity.  There  is  no  averment  of  insolvency  of  Gray  or  Blett- 
ner,  and  an  action  for  fraud  and  deceit  against  them,  jointly  or  sep- 
arately, would  seem  to  furnish  a  complete  and  effectual  remedy  to 
complainant  for  the  wrongs  he  alleges  he  has  sufifered  at  their  hands. 
While  equity  and  law  have  concurrent  jurisdiction  to  relieve  against 
fraud,  still  when  the  remedy  at  law  is,  as  here,  adequate  and  com- 
plete and  not  surrounded  with  obstacles  or  unusual  inconvenience, 
equity  will  not  interfere,  but  leave  the  parties  to  obtain  redress  at 
law.  In  a  case  like  the  one  before  us,  involving  questions  of  fact, 
presumably  in  dispute,  where  the  parties  are  entitled  to  a  trial  by  a 
jury  to  determine  such  questions  of  fact,  it  is  the  policy  of  equity  not 
to  take  jurisdiction,  but  to  relegate  the  parties  to  that  remedy  at  law 
where  their  constitutional  right  to  have  the  facts  in  dispute  submitted 
to  a  jury  can  be  accorded  them.  This  would  be  so  even  in  a  doubtful 
case,  which  the  case  at  bar  certainly  is  not.  Shenehon  v.  111.  Life 
Ins.  Co.,  100  111.  App.  281 ;  Hacker  v.  Barton,  84  111.  313. 

Complainant's  counsel  cite  Vol.  14,  p.  172,  Am.  &  Eng.  Ency.  of 
Law,  and  cases  there  cited,  to  sustain  their  contention  that  equity  will 
take  jurisdiction  in  cases  of  fraud  of  the  character  of  the  case  dis- 
closed by  the  bill,  and  make  the  following  quotation,  viz:  "Subject 
to  a  few  exceptions,  courts  of  equity  exercise  a  general  jurisdiction 
to  grant  relief  in  cases  of  fraud,  concurrent  with  the  jurisdiction  of 
courts  of  law.  It  is  a  general  rule,  however,  that  a  court  of  equity 
will  not  assume  jurisdiction  in  a  case  where  there  is  a  plain,  adequate 
and  complete  remedy  at  law,  even  though  fraud  is  charged  as  a 
ground  of  relief.  But  to  exclude  jurisdiction,  it  is  not  enough  merely 
to  show  that  there  is  a  remedy  at  law.  The  remedy  must  be  plain, 
adequate  and  complete."  We  accord  our  approval  of  this  statement 
of  the  law  and,  conceding  its  correctness,  its  application  to  the  case 
at  bar  inhibits  the  right  of  complaint  to  any  relief  in  equity.  His 
remedy  is  complete,  plain  and  adequate  at  law.  There  is  no  reason 
apparent  from  any  averment  of  the  bill,  on  the  assumption  that  all 
of  them  are  susceptible  of  proof,  why  a  court  of  law  cannot  grant 
full  an3  complete  relief  to  complainant  for  the  frauds  alleged  in  his 
bill  to  have  been  practiced  upon  him. 


70  EEScissioN.  (Part  3 


ADAMS  V.  GILUG. 

(Court  of  Appeals  of  New  York,  1910,  199  N.  Y.  314,  92  N.  E.  G70.) 

The  defendant  sought  to  purchase  a  portion  of  tlie  plaintiff's  lot 
fronting  on  Elmwood  avenue  and  stated  that  he  desired  to  purchase 
the  same  for  residence  purposes. 

ChasE^  J.  Any  contract  induced  by  fraud  as  to  a  matter  material 
to  the  party  defrauded  is  voidable.     .     .     . 

The  simple  question  in  this  case  is,  therefore,  whether  the 
alleged  intention  of  the  defendant  to  build  a  dwelling  or  dwellings 
upon  the  lot  which  he  sought  to  purchase  is  such  a  statement  of  an 
existing  material  fact  as  authorizes  the  court  to  cancel  the  deed  be- 
cause of  the  fraud. 

The  distinction  between  a  collateral  agreement  as  a  part  of  a  con- 
tract to  do  or  not  to  do  a  particular  thing,  and  a  statement  and  repre- 
sentation of  a  material  existing  fact  made  to  induce  the  contract  may 
be  further  profitably  considered. 

A  promise  as  such  to  be  enforceable  must  be  based  upon  a  con- 
sideration, and  it  must  be  put  in  such  form  as  to  be  available  under 
'the  rules  relating  to  contracts  and  the  admission  of  evidence  relating 
thereto.  It  may  include  a  present  intention,  but  as  it  also  relates  to 
the  future  it  can  only  be  enforced  as  a  promise  under  the  general 
rules  relating  to  contracts. 

A  mere  statement  of  intention  is  a  different  thing.  It  is  not  the 
basis  of  an  action  on  contract.  It  may  in  good  faith  be  changed  with- 
out affecting  the  obligations  of  the  parties.  A  statement  of  intention 
does  not  relate  to  a  fact  that  has  a  corporal  and  physical  existence, 
but  to  a  material  and  existing  fact  nevertheless  not  amounting  to  a 
promise  but  which  as  in  the  case  under  discussion  affects  and  deter- 
mines important  transactions.  The  question  here  under  discussion 
is  not  affected  by  the  rules  relating  to  the  admission  of  testimony. 
As  it  was  not  promissory  and  contractual  in  its  nature  there  is  nothing 
in  the  rules  of  evidence  to  prevent  oral  proof  of  the  representations 
made  by  the  defendant  to  the  plaintiff.  In  an  action  brought  ex- 
pressly upon  a  fraud,  oral  evidence  of  facts  to  show  the  fraud  is 
admissible. 


Ch.    7)  FEAUDS.  71 

In  civil  actions  relating  to  wrongs,  the  intent  of  the  party  charged 
with  the  wrong  is  frequently  of  controlling  effect  upon  the  conclusion 
to  be  reached  in  the  action.  The  intent  of  a  person  is  sometimes  dif- 
ficult, to  prove,  but  it  is  nevertheless  a  fact  and  a  material  and  existing 
fact  that  must  be  ascertained  in  many  cases,  and  when  ascertained 
determines  the  rights  of  the  parties  to  controversies.  The  intent  of 
GilHg  was  a  material  existing  fact  in  this  case,  and  the  plaintiff's  re- 
liance upon  such  fact  induced  her  to  enter  into  a  contract  that  she 
would  not  otherwise  have  entered  into.  The  effect  of  such  false 
statement  by  the  defendant  of  his  intention  cannot  be  cast  aside  as 
immaterial  simply  because  it  was  possible  for  him  in  good  faith  to 
have  changed  his  mind  or  to  have  sold  the  property  to  another  who 
might  have  a  different  purpose  relating  thereto.  As  the  defendant's 
intention  was  subject  to  change  in  good  faith  at  any  time  it  was  of 
uncertain  value.  It  was,  however,  of  some  value.  It  was  of  sufficient 
value  so  that  the  plaintiff  was  willing  to  stand  upon  it  and  make  the 
conveyance  in  reliance  upon  it.     .     .     . 

Unless  the  court  affirms  this  judgment,  it  must  acknowledge  that 
although  a  defendant  deliberately  and  intentionally,  by  false  state- 
ments, obtained  from  a  plaintiff  his  property  to  his  great  damage  it  is 
wholly  incapable  of  righting  the  wrong,  notwithstanding  the  fact 
that  by  so  doing  it  does  in  no  way  interfere  with  the  rules  that  have 
grown  up  after  years  of  experience  to  protect  written  contracts  from 
collateral  promises  and  conditions  not  inserted  in  the  contract. 

We  are  of  the  opinion  that  the  false  statements  made  by  the  de- 
fendant of  his  intention  should,  under  the  circumstances  of  this  case, 
be  deemed  to  be  a  statement  of  a  material,  existing  fact  of  which 
the  court  will  lay  hold  for  the  purpose  of  defeating  the  wrong  that 
would  otherwise  be  consummated  thereby. 


HARLOW  V.  LA  BRUN. 

(Supreme  Court  of  New  York,  1894,  82  Hun.  292,  31  N.  Y.  Supp.  487.) 

Mayham,  p.  J.  The  plaintiff  brings  this  action  for  a  dissolution 
of  what  he  alleges  to  be  a  valid,  existing  copartnership  between  him 
and   the   defendant,   and    for   an   accounting  as   partners.   The   com- 


72  EEscissioi^.  (Part 


plaint  sets  out  written  articles  of  copartnership.  The  answer  does 
not  deny  the  making  of  the  written  articles  of  copartnership,  but  im- 
pliedly admits  the  same,  and  sets  up  in  a  defense  that  he  was  induced 
to  enter  into  such  copartnership  by  the  fraudulent  representations  of 
the  plaintiff  that  a  stock  of  merchandise  which  he  put  into  such  co- 
partnership cost  the  sum  of  $1,890.05,  an  undivided  half  of  which 
would  belong  to  the  defendant  under  such  articles  of  copartnership, 
and  against  which  defendant  put  in  the  sum  of  $850  in  cash  and  his 
notes  to  the  plaintiff  of  $1,150;  and  alleges  that  the  merchandise  in 
fact  cost  the  plaintiff  but  the  sum  of  $1,134,  which  fact  the  plain- 
tiff well  knew  at  the  time  of  making  such  representations,  and  of 
which  defendant  was  wholly  ignorant.     .     .     . 

It  is  also  urged  by  the  learned  counsel  for  the  plaintiff  that,  as  there 
was  no  proof  that  the  stocks  of  goods  were  in  fact  worth  less  than 
$1,890.05,  therefore  the  defendant  had  not  by  the  proof  suffered  any 
loss,  and  that  he  was  not,  therefore,  entitled  to  any  relief.  The  rep- 
resentation in  this  case  was  not  a  mere  representation  by  the  plain- 
tiff of  the  value  of  the  property,  which  at  most  could  but  be  an  ex- 
pression of  his  opinion,  and  for  which  no  action  would  ordinarily 
lie.  Chrysler  v.  Canady,  90  N.  Y.  272;  Schumaker  v.  Mather,  133  N. 
Y.  590,  30  N.  E.  755.  In  such  cases  the  party  purchasing,  or  to 
whom  the  representation  is  made,  has  access  to  the  open  market  to 
determine  the  value,  and  may  exercise  his  own  judgment  as  to  the 
value.  We  think  the  rules  are  different  whre  fraudulent  representa- 
tion is  made  by  the  vendor  as  to  the  cost  of  a  chattel.  In  Fairchild 
V.  McMahon,  139  N.  Y.  290,  34  N.  E.  779,  O'Brien,  J.,  sharply  recog- 
nizes the  existence  of  such  distinction,  and  in  discussing  this  question  of 
a  distinction  between  an  opinion  by  the  vendor  and  false  representa- 
tion as  to  its  cost  says : 

"But  the  question  here  is  not  one  arising  out  of  a  representation 
as  to  value.  The  representation  was  with  respect  to  a  fact  which 
might,  in  the  ordinary  course  of  business,  influence  the  action  and 
control  the  judgment  of  the  purchaser,  namely,  the  price  paid  for  the 
property  about  to  be  sold  by  the  vendor;  .  .  .  and  so  we  think 
a  false  statement  with  respect  to  the  price  paid  under  such  circum- 
stances which  is  intended  to  influence  the  purchaser,  and  does  in- 
fluence him,  constitutes  a  sufficient  basis  for  the  finding  of  fraud;" 
citing  in  support  of  that  contention:  Sandford  v.  Handy,  23  Wend. 
260 ;  Van  Epps  v.  Harrison,  5  Hill,  63 ;  Smith  v.  Countryman,  30  N. 


Cll.    7)  FRAUDS.  73 

Y.  655;  Hammond  v.  Pennock,  61  N.  Y.  151 ;  Goldenberg  v.  Hoffman, 
69  N.  Y.  326. 

Nor  can  we  agree  with  the  contention  of  the  learned  counsel  for 
the  plaintiff  that,  as  no  pecuniary  damage  was  proved  by  the  defend- 
ant, he  is  not  entitled  to  any  relief  in  this  action.  The  relation  of 
partners  is  one  implying  the  highest  degree  of  mutual  confidence. 
By  such  relation  each  becomes  the  custodian,  not  only  of  the  prop- 
erty, but  to  a  great  degree  of  the  character  and  business  standing  of 
the  other.  For  the  court,  therefore,  in  an  equitable  action,  to  uphold 
a  contract  consummated  by  fraud,  and  thus,  as  between  the  deceiver 
and  deceived,  to  bind  the  property  and  character  of  the  latter,  would 
seem  to  be  not  only  inequitable,  but  oppressive.  Nor  should  the  re- 
lation be  continued  until  the  injured  and  deceived  party  has  been  sub- 
jected to  actual  loss,  which  he  may  prove,  in  dollars  and  cents.  When 
he  appeals  to  the  court  for  relief,  and  establishes  the  fraud,  he  should 
be  relieved  from  the  hazard  of  a  business  combination  into  which  he 
has  been  inveigled  by  fraud  and  misrepresentation.  We  think,  there- 
fore, that  the  trial  court  w^as  right  in  declaring  this  contract  void  and 
inoperative  from  its  inception,  and  by  the  judgment  of  the  court  re- 
store as  far  as  possible  the  status  quo  of  these  parties.  We  have 
carefully  examined  all  the  exceptions  taken  by  the  learned  counsel 
for  the  plaintiff  to  the  rulings,  findings,  refusals  to  find,  and  de- 
terminations of  the  trial  judge,  and  find  no  error  for  which  this  judg- 
ment should  be  reversed.  Judgment  affirmed,  with  costs.  All  con- 
cur. 


VANDERBILT  v.  MITCHELL. 

(New  Jersey  Court  of  Chancery,  1907,  72  N.  J.  Eq.  910,  67  Atl.  97.) 

Dill  T.  •  •  •  A  court  of  equity  is  the  only  tribunal  which  can 
afford  adequate  relief  to  the  complainant  under  the  peculiar  and  some- 
what novel  circumstances  of  this  case,  and  that  regardless  of  whether 
certiorari  or  mandamus  would  afford  him  relief  in  certain  respects. 

The  complainant  properly  invokes  the  aid  of  a  court  of  equity,  on 
the  ground  of  its  inherent  jurisdiction  over  frauds,  to  annul  and 
cancel  a  fraudulent  certificate,  based  upon  the  false  statements  of 
the  wife  as  to  the  paternity  of  the  child,  filed  by  a  public  officer, 


7-^  EEscissiON.  (Part  o 

which  certificate,  by  force  of  the  statute,  has  such  evidential  char- 
acter that  it  is  prima  facie  evidence  of  the  facts  therein  contained, 
and  v^hich,  unless  attacked  by  competent  evidence,  becomes  conclusive 
to  prove  the  facts  therein  recorded. 

As  we  view  the  gravamen  of  the  bill,  the  complainant  does  not 
seek  a  decree  dissolving  any  existing  valid  status,  thereby  altering 
the  actual  relation  of  the  parties,  but  a  judicial  determination  of  the 
matter  of  the  alleged  status  of  paternity  prima  facie  created  by  this 
certificate,  to  determine  that  such  alleged  status  does  not  exist  and 
to  give  adequate  relief. 

In  other  words,  the  theory  upon  which  the  equity  of  the  bill  rests 
is  not  to  establish  a  status,  or,  on  the  other  hand,  to  disestablish  a 
status,  except  for  the  special  object  of  determining  whether  the  in- 
formation given  to  the  physician  by  the  wife  was  fraudulent,  and 
whether  thereupon  the  certificate  itself,  so  far  as  it  imputes  to  the 
complainant  the  paternity  of  the  child,  was  fraudulent. 

The  relief  sought  is  a  decree  expunging  from  the  public  records 
of  this  state,  on  the  ground  of  fraud,  the  certificate  of  birth,  or  so 
much  thereof  as  relates  to  and  charges  upon  the  complainant  the 
paternity  of  the  child,  with  an  injunction  against  all  parties  who  might 
issue  copies  or  use  such  copies  or  the  original  certificate  as  evidence 
of  such  paternity. 

The  character  of  the  recorded  certificate,  by  whom  prepared  and 
filed,  and  its  force  and  efifect  as  evidence,  are  fixed  by  statute.  P.  L. 
1888,  p.  52.    See,  also,  P.  L.  1900  p.  370  ch.  150  §§  28,  29. 

The  act  of  1888,  requiring  the  filing  of  certificates  of  birth,  makes 
it  the  duty  of  the  attending  physician,  within  thirty  days  after  a 
birth,  to  make,  and  cause  to  be  transmitted  to  the  superintendent  of 
the  bureau  of  vital  statistics,  a  certificate  thereof,  which  certificate 
shall  set  forth  particularly,  as  far  as  the  facts  can  be  obtained  by  the 
physician,  among  other  things,  the  date  and  place  of  birth,  the  name 
of  each  of  the  parents,  the  maiden  name  of  the  mother,  the  name  of 
the  child,  and  the  name  of  the  attending  physician,  and  by  section  13 
of  this  act  it  is  provided  that : 

"any  such  original  certificate,  or  any  copy  thereof  certified  to  be  a  true  copy, 
under  the  hand  of  said  medical  superintendent,  shall  be  received  in  any  court 
of  this   state  to  prove  the  facts  therein  contained." 


Ch.    7)  FRAUDS.  75 

It  is  important  to  note  that  the  legislature  evidently  had  not  in 
mind  the  possibility  that  this  statutory  record  might  be  made  an  in- 
strument to  effectuate  a  fraud.  Section  11  of  the  act  of  1888  (P.  L. 
1888  p.  59)  provides  that  any  minister  of  the  gospel,  magistrate, 
physician,  midwife,  or  other  person,  who  shall  knowingly  make  any 
false  certificate  of  marriage,  birth  or  death,  shall  be  deemed  guilty  of 
a  misdemeanor,  but  there  is  an  absence  of  statutory  provision  for 
the  correction,  modification  or  annulment  of  the  record  in  case  either 
of  fraud  or  mistake. 

As  to  the  force  and  effect  of  the  certificate,  whether  it  is  an  ad- 
judication by  the  physician  of  the  facts  which  it  recites,  or  whether 
it  is  a  mere  statement  by  such  physician  of  facts  which  have  been 
recited  to  him,  is  unnecessary  for  us  to  determine.  If  it  be  an  ad- 
judication, then,  so  far  as  the  determination  of  the  father  of  the 
child  is  concerned,  it  was  obtained  by  a  false  representation  made 
to  the  officer  by  the  mother.  If,  on  the  other  hand,  it  is  a  mere 
recital  by  the  physician  of  a  statement  made  to  him  by  the  mother, 
then  that  false  statement  has,  by  force  of  the  statute,  become  spread 
upon  the  record  of  the  state  as  the  truth. 

In  either  event,  the  complainant  has  been  fraudulently  recorded 
as  the  father  of  this  child,  and  the  recorded  statement  is  evidential 
against  him  in  all  matters  where  the  question  of  the  paternity  of  the 
child  is  involved.  In  an  action  to  compel  him  to  support  the  child, 
or  an  action  for  necessaries  furnished  to  the  child,  a  certified  copy 
of  this  record  would  be  prima  facie  evidence  that  would  tend  to 
establish  his  liability,  not  only  in  this  state,  but  in  other  juris- 
dictions as  well.  Speaking  generally,  this  certificate  is  also  evi- 
dence upon  the  question  of  who  shall  inherit  an  individual's  estate, 
a  question  of  vital  importance  to  every  man,  having  also  a  direct 
bearing  upon  the  possible  issue  of  a  second  marriage  should  he 
desire  to  contract  one.  But  with  this  topic  we  deal  later.  Upon  the 
question  of  equity  jurisdiction  it  may  be  said  that  the  jurisdiction 
of  a  court  of  equity  to  cancel,  annul  and  set  aside  judgments  on  the 
ground  of  fraud,  as  well  as  certificates  and  determinations  of  pub- 
lic officers  charged  with  judicial  or  executive  functions,  is  set- 
tled.    .     .     . 

Where  a  public  record' is  pronounced  fraudulent,  the  relief  is  not 
confined  to  an  iniunclion  forbidding  its  use,  but  the  decree  may  direct 


76  RESCISSION.  (Part  3 

a  cancellation  of  the  record  upon  the  face  thereof.  Fenton  v.  Way, 
44  Iowa,  428;  Jones  v.  Porter,  59  Miss.  628;  Randazzo  v.  Roppolo, 
post. 

An  officer  making  or  having  in  his  possession  the  record  may  be 
made  a  party  to  a  suit  to  set  it  aside,  although  he  is  not  charged  with 
any  fraud  and  is  faithfully  performing  his  public  duties,  and  may 
be  enjoined  by  the  decree.     .     .     , 

Upon  the  whole  case,  we  are  of  the  opinion  that  the  court  of  chan- 
cery has  jurisdiction  to  afford  the  complainant  ample  and  complete 
relief,  as  already  indicated  in  this  opinion;  that,  should  the  court 
of  chancery  refuse  relief  under  the  circumstances  stated  in  the  bill, 
it  would  cease  to  be  a  court  of  equity  governed  by  principles  of 
natural  justice,  especially  where  property  rights  may  be  said  to  be 
threatened  and  personal  rights  are  clearly  invaded. 

The  decree  sustaining  the  demurrer  is  reversed. 


LININGTON  V.  STRONG  ET  Ah. 

(Supreme  Court  of  Illinois,  1883,  107  111.  295.) 

Mr.  Justice  Dickey.  .  .  .  The  doctrine  is  well  settled,  that, 
as  a  rule,  a  party  guilty  of  fraudulent  conduct  shall  not  be  allowed 
to  cry  "negligence,"  as  against  his  own  deliberate  fraud.  Even  where 
parties  are  dealing  at  arms'  length,  if  one  of  them  makes  to  the  other 
a  positive  statement,  upon  which  the  other  acts  (with  the  knowledge 
of  the  party  making  such  statement)  in  confidence  of  its  truth,  and 
such  statement  is  knozvn  to  he  false  by  the  party  making  it,  such  con- 
duct is  fraudulent,  and  from  it  the  party  guilty  of  fraud  can  take  no 
benefit.  While  the  law  does  require  of  all  parties  the  exercise  of 
reasonable  prudence  in  the  business  of  life,  and  does  not  permit  one 
to  rest  indifferent  in  reliance  upon  the  interested  reprsentations  of 
an  adverse  party,  still,  as  before  suggested,  there  is  a  certain  limita- 
tion to  this  rule,  and  as  between  the  original  parties  to  the  transaction, 
we  consider  that  where  it  appears  that  one  party  has  been  guilty  of 
an  intentional  and  deliberate  fraud,  by  which,  to  his  knowledge,  the 
other  party  has  been  misled,  or  influenced  in  his  action,  he  cannot 
escape  the  legal  consequences  of   his   fraudulent  conduct   by   saying 


Ch.    7)  FRAUDS.  77 

that  the  fraud  might  have  been  discovered  had  the  party  whom  he 
deceived  exercised  reasonable  diHgence  and  care.     .     .     . 


SANGER  V.  WOOD. 

(Court  of  Chancery  of  New  York,  1818,  3  Johns.  Ch.  416.) 

The  Chancellor.  The  bill  states  that  the  plaintiffs  sued  at  law 
under  that  last  contract,  and  which  was,  of  course,  in  affirmance  of 
it ;  and  that,  a  few  days  before  the  trial  at  the  Madison  circuit,  they 
discovered  the  fraud  now  set  up  as  a  ground  to  rescind  that  contract. 
And  yet,  notwithstanding  that  discovery,  they  go  to  trial  in  the  suit 
on  that  contract,  and  take  a  verdict  for  the  moneys  due  from  the  de- 
fendant under  it,  and,  afterwards,  judgment  is  entered  up  by  them 
on  that  verdict ;  and,  in  April  last,  they  even  apply  to  this  court  for 
leave  to  take  out  execution  at  law  on  the  judgment  so  recovered. 
The  last  motion  was,  indeed,  made  on  the  ground  that  it  might  not 
prejudice  their  rights  in  this  suit ;  but  I  am  induced  to  think  they  had 
already  waived  those  rights  by  their  previous  proceedings.  The  suit 
at  law,  and  the  action  here,  are  inconsistent  with  each  other,  since 
the  one  affirms,  and  the  other  seeks  to  disaffirm,  the  contract  in  ques- 
tion. It  is  probable  the  amount  of  the  judgment  may  have  been 
already  collected,  and  the  plaintiffs  could  not,  for  a  moment,  be  per- 
mitted to  keep  the  moneys  recovered  under  that  contract,  if  they  should 
succeed  in  their  bill  to  have  it  annulled.  In  a  case  where  the  remedies 
sought  are  so  absolutely  repugnant  to  each  other,  the  plaintiffs  ought 
to  have  made  their  election  at  once,  after  they  came  to  the  knowledge 
of  the  facts.  If  they  meant  to  have  disannulled  the  contract  of  April, 
1816,  then  it  was  vexatious,  as  well  as  useless,  to  have  gone  on  to  a 
trial,  and  judgment  and  execution.  They  had  no  right  to  try  the 
experiment  how  much  they  could  recover  at  law  under  the  contract 
(for  the  bill  admits  the  suit  at  law  was  brought  upon  that  agreement), 
before  they  elected  to  waive  it,  and  then,  retaining  their  verdict  and 
entering  judgment  at  law,  apply  to  this  court  to  set  the  contract  aside. 
This  proceeding  would  be  giving  the  plaintiffs  a  double  advantage, 
and  is  unreasonable  and  inadmissible. 

Any  decisive  act  of  the  party,  with  knowledge  of  his  rights  and 
of  the  fact,  determines  his  election  in  the  case  of  conflicting  and  in- 


78  RESCISSION.  (Part  3 

consistent  remedies.  If  he  take  out  a  commission  of  bankruptcy,  he 
cannot  sue  the  bankrupt  at  law,  for  that  would  be  again  superseding 
the  commission.  (Ex  parte  Ward,  1  Atk.  153;  Ex  parte  Lewes,  1  Atk. 
154).  So,  charging  a  party  in  an  execution  at  law  after  a  commission 
issued,  is  an  election  to  take  the  remedy  at  law,  and  the  party  must 
abide  by  it.  (Ex  parte  Warder,  3  Bro.  191 ;  Ex  parte  Cator,  3 
Bro.  216).  So,  again,  if  a  party  seeks  relief  in  equity  by  bill 
waiving  a  forfeiture  at  law,  though  he  fail  in  obtaining  relief,  he 
cannot  afterwards  insist  on  the  forfeiture  at  law.  (1  Sch.  &  Lef.  441). 

There  cannot  be  any  doubt  of  the  principle  that  equity  will  not 
relieve  a  party  fully  apprized  of  his  rights,  and  deliberately  confirm- 
ing a  former  act.  The  doctrine  has  been  again  and  again  declared. 
(3  P.  Wms.  294,  note  E,  &c. ;  1  Atk.  344;  1  Ball  and  Beatty,  340).  And 
I  consider  the  going  to  trial  in  the  action  at  law,  and  especially  the 
entry  of  judgment  afterwards  upon  the  verdict,  as  a  decided  con- 
firmation of  the  settlement  in  April,  1816. 

I  shall,  accordingly,  dismiss  this  bill ;  but  from  the  opinion  which 
I  have  formed  upon  the  merits  of  the  transaction,  I  am  not  willing 
to  charge  the  plaintiffs  with  costs;  and  I  shall  consequently  dismiss 
the  bill  without  costs. 

Order  accordingly. 


HAMMOND  V.  PENNOCK. 

(New  York  Court  of  Appeals,  1874,  61  N.  Y.  145.) 

DwiGHT,  C.  .  .  .  The  case  has  thus  far  been  considered  as 
though  the  fraud  requisite  as  a  basis  for  rescinding  a  contract  in 
equity  is  the  same  in  nature  as  that  demanded  in  a  court  of  law  in 
an  action  for  damages  for  deceit.  In  equity,  the  right  to  relief  is 
derived  from  the  suppression  or  misrepresentation  of  a  material  fact, 
though  there  be  no  intent  to  defraud.  (Per  Lord  Romilly,  in  Peek  v. 
Gurney,  L.  R.  (13  Eq.),  79,  113;  Wilcox  v.  Iowa  University,  32 
Iowa,  367) .  This  view  has  been  applied  to  innocent  misrepresentations 
in  a  prospectus,  providing  that  they  were  of  the  essence  of  the  con- 
tract. (Smith  V.  Reese  River  Co.,  L.  R.  (2  Eq.),  264;  Kennedy  v. 
Panama  Co.,  L.  R.  (2  O.  B.),  580).     This  doctrine  is,  substantially, 


Ch.    7)  FRAUDS.  79 

grounded  in  fraud,  since  the  misrepresentation  operates  as  a  surprise 
and  imposition  upon  the  opposite  party  to  the  contract.  It  is  in- 
equitable and  unconscientious  for  a  party  to  insist  on  holding  the 
benefit  of  a  contract  which  he  has  obtained  through  misrepresentations, 
however  innocently  made.  (1  Story  on  Kq.  Jtu".,  Sec.  193,  and  cases 
cited;  Perry  on  Trusts,  Sec.  171). 

There  can  be  no  doubt  that,  in  this  aspect  of  the  case,  the  defend- 
ant obtained  the  property  of  the  plaintiff  through  misrepresentations 
which  are  material,  even  though  it  be  assumed  that  they  were  made 
w^ithout  bad  intent  on  his  part. 

Assuming  that  there  was  evidence  from  which  fraud  could  be  fovmd, 
the  next  inquiry  is,  w^hether  the  court,  acting  as  a  court  of  equity, 
should  have  rescinded  the  contract.  It  is  objected  on  the  part  of 
the  defendant  that  the  plaintiiT  did  not  act  promptly  and  restore,  or 
oiifer  to  restore,  what  he  received  under  the  contract.  It  is,  un- 
doubtedly, a  general  rule  of  law,  that  a  party  who  would  rescind  a 
contract,  upon  the  ground  of  fraud,  must  act  promptly  and  restore, 
or  ofifer  to  restore,  to  the  other  party  what  he  received  under  it.  But 
this  rule  only  means  that  he  must  restore  what  he  himself  has  re- 
ceived, and  has,  by  force  of  the  contract,  under  his  own  control.  If 
the  wrong-doer  has,  by  his  own  act,  complicated  the  case,  so  that  full 
restoration  cannot  be  made,  he  has  but  himself  to  blame.  No  one, 
perhaps,  has  stated  this  qualification  more  satisfactorily  than  the  late 
Judge  Beardsley,  in  Masson  v.  Bovet  (1  Denio,  69)  ;  he  there  said:  "If 
a  party  defrauded  would  disaffirm  the  contract,  he  must  do  so  at 
the  earliest  practicable  moment  after  the  discovery  of  the  cheat.  That 
is  the  time  to  make  his  election,  and  it  must  be  done  promptly  and  un- 
reservedly. He  must  not  hesitate ;  nor  can  he  be  allowed  to  deal  with 
the  subject-matter  of  the  contract  and  afterward  rescind  it.  The  party 
who  would  disaffirm  a  fraudulent  contract,  must  return  whatever  he 
has  received  upon  it.  This  is  on  a  plain  and  just  principle.  He  cannot 
hold  on  to  such  part  of  the  contract  as  may  be  desirable  on  his  part 
and  avoid  the  residue,  but  must  rescind  in  toto,  if  at  all. 

"It  was  urged  on  the  argument,  that  a  contract  cannot  be  rescinded 
by  one  of  the  parties,  alone,  so  as  to  authorize  a  recovery  by  him  of 
what  had  been  paid  on  it,  unless  the  other  party  is  thereby  fully  re- 
stored to  the  condition  in  which  he  stood  before.  This  is  certainly  the 
general  rule,  but  in  cases  of  fraud  it  can  only  mean  that  the  party  de- 


so  EEscissioK.  (Part  3 

frauded,  if  he  would  rescind  the  contract,  must  return,  or  offer  to  re- 
turn, everything  he  received  in  execution  of  it.  To  retain  the  whole, 
or  a  part  only,  of  what  was  received  upon  the  contract,  is  incompatible 
with  its  rescission. 

"This  is  not  exacted  on  account  of  any  feeling  of  partiality  or  re- 
gard for  the  fraudulent  party.  The  law  cares  very  little  what  his  loss 
may  be,  and  exacts  nothing  for  his  sake.  If,  therefore,  he  has  so 
entangled  himself  in  the  meshes  of  his  own  knavish  plot  that  the  party 
defrauded  cannot  unloose  him,  the  fault  is  his  own,  and  the  law  only 
requires  the  injured  party  to  restore  what  he  has  received,  and,  as  far 
as  he  can,  undo  what  had  been  done  in  the  execution  of  the  contract. 
This  is  all  that  the  party  defrauded  can  do,  and  all  that  honesty  and 
fair  dealing  require  of  him.  If  this  fail  to  extricate  the  wrong-doer 
from  the  position  that  he  has  assumed,  it  is  in  no  sense  the  fault  of  his 
intended  victim,  and  upon  the  principles  of  eternal  justice  whatever 
consequences  may  follow  should  rest  on  the  head  of  the  offender 
alone."     .     .     . 


SUMMERS  V.  GRIFFITHS. 

(In   Chancery,   1865,  35   Beav.,   27.) 

By  deed,  dated  the  18th  of  July,  1853,  Mary  Lloyd  (since  deceased), 
in  consideration  of  40  pounds  conveyed  a  tithe  rent-charge  of  8  pounds 
per  annum,  issuing  out  of  a  farm  called  Colston,  to  the  Defendant 
William  Griffiths,  "his  heirs  and  assigns." 

Mary  Lloyd,  an  old  illiterate  widow,  was  then  in  her  eighty-ninth 
year,  but  in  possession  of  all  her  faculties,  and  she  kept  a  public-house 
in  Fishguard.  One  witness  represented  her  as  being  very  correct  in 
business,  "and  very  much  alive  to  her  own  interests  in  money  matters. 
She  was  a  very  intelligent  and  clear-headed  woman,  and,  having  re- 
gard to  her  advanced  age,  sharp  and  active,  both  in  mind  and  body." 
She  had  no  professional  advice  on  the  occasion,  and  the  deed  was  pre- 
pared by  the  Defendant's  solicitors.  The  value  of  the  fee-simple  of 
this  tithe  rent-charge  (if  a  good  title  were  shewn  to  it)  was  admitted 
to  be  twenty-years'  purchase  or  160  pounds.     .     .     . 

The  Master  of  the  Roels.  .  .  .  I  am  of  opinion  that  the  plain- 
tiff is  entitled  to  a  decree. 


Ch.    7)  FRAUDS.  8L 

The  state  of  the  case,  as  put  by  the  Defendant  himself,  is,  that  an 
old  woman,  of  the  age  of  eight-nine,  in  distress  for  money,  and  having 
a  doubt  about  the  title  to  the  property,  comes  to  him  and  asks  him  to 
buy  it  at  one-fourth  or  one-fifth  of  its  value,  and  that  she,  having  no 
species  of  legal  assistance  of  any  sort,  makes  that  offer  to  him.     He 
assents,  and  buys  it  at  that  amount,  having  at  the  time  in  his  hands  the 
title  to  her  property,  and  knowing  or  having  the  means  of  knowing 
exactly  what  her  title  was,  and  having  told  her,  at  first,  that  she  could 
make  no  title  to  it,  or  that  if  she  was  entitled  to  it  her  husband  prob- 
ably was  not,  he  having  the  deed  probably  shewing  how  long  the  hus- 
band had  had  the  property,  and  that  she  had  then  had  thirty  years  un- 
interrupted possession  of  the  rent-charge.     Thereupon  he  buys  the 
property  for  one-fourth  its  value.    This  is  the  most  favorable  mode  of 
stating  the  case,  and  I  am  then  asked  to  say,  that  if  the  matter  were 
fresh,  this  is  a  transaction  which  can  be  supported,  and  the  only  reason 
urged  why  it  can  be  supported  is  that  the  bill  charges  fraud.    No  per- 
son, I  think,  has  been  more. strict  than  I  have  in  endeavouring  to  re- 
press the  improper  uses  of  the  word  "fraud"  in  regard  to  transactions 
which  are  neither  of  an  improper  nor  an  immoral  character, — I  mean 
immoral  in  the  sense  of  taking  advantage  of  a  person  who  does  not 
know  what  the  value  of  his  property  is.    I  do  not  understand  the  dis- 
tinction on  the  subject  taken  in  the  case  of  Harrison  v.  Guest.    There 
appears  to  me  to  be  distinct  fraud  in  this  case,  and  on  that  ground  I  am 
of  opinion  that  the  Plaintifif  is  entitled  to  recover. 

It  is  true  the  Plaintiff  has  put  forward  another  case  on  the  bill, 
which  is,  that  Mary  Lloyd  intended  to  sell  her  life  interest  only,  and 
there  is  some  ground  for  that  suggestion  on  the  evidence ;  but  here  is 
this  man,  who  knows  everything  about  the  title,  and  who  admits  (in 
the  state  of  circumstances  I  have  mentioned)  that  he  allowed  this  old 
woman  to  sell  the  property  to  him  for  one-fourth  its  value,  she  be- 
lieving there  was  a  defect  of  title.  If  that  be  not  fraud  I  am  at  a  loss 
to  know  what  the  meaning  of  the  word  "fraud"  is,  in  the  proper  and 
legal  sense  of  the  word.  If  a  person  comes  to  me  and  offers  to  sell 
to  me  a  property  which  I  know  to  be  of  five  times  the  value  he  offers  it 
for,  he  being  ignorant  of  his  rights  and  in  the  belief  that  he  cannot  make 
out  a  title,  while  I  know  that  he  can,  and  I  conceal  that  knowledge  from 
him,  is  not  that  a  suppressio  vert,  which  is  one  of  the  elements  wliich 

constitute  a  fraud? 
3Eq.— 6 


82  EESCissiON.  (Part  o 

I  am  of  opinion  that  the  Plaintiff  in  this  case  is  entitled  to  a  decree 
to  set  this  deed  aside,  on  payment  to  the  Defendant  of  the  principal 
sum  and  interest  after  deducting  the  tithes  he  has  received.  The  Plain- 
tiff must  pay  the  cost  of  the  other  Defendants,  because,  in  my  opinion, 
they  ought  all  to  have  joined  as  co-plaintiffs. 

There  is  this  also  to  be  observed  with  respect  to  the  question  of  time, 
that  ten  years  have  elapsed,  and  this  old  lady  took  no  steps  in  her  life- 
time. She  died  in  1862,  and  neither  the  son  nor  his  assignee  took  any 
steps  until  March,  1864,  when  the  bill  was  filed.  But,  then,  I  observe 
that  there  are  persons  who  are  interested  in  remainder,  some  of  whom 
are  infants  and  cannot  be  bound  by  that  lapse  of  time,  though  it  is 
absolutely  necessary  that  there  should  be  some  limit  to  these  cases. 

It  is  true,  as  Mr.  Jcsscl  says,  that  mere  inadequacy  of  value  is  not 
a  sufficient  ground  for  setting  aside  a  transaction.  But  how  far  is  that 
to  go,  is  there  to  be  no  such  inadequacy  of  value  as  can  amount  to 
evidence  of  fraud?  Lord  Thiirloiv  said,  that  to  set  aside  a  conveyance, 
there  must  be  an  inequality,  so  strong,  gross  and  manifest,  that  it  must 
be  impossible  to  state  it  to  a  man  of  common  sense  without  producing 
an  exclamation  at  the  inequality  of  it.  Tried  by  this  test,  I  am  satis- 
fied that  most  men  of  common  sense  would  exclaim  at  the  inequality, 
when  they  found  that  an  old  woman  of  eighty-nine  had  sold  property 
for  one-fourth  of  its  value  because  she  was  in  distress,  and  that  with- 
out any  legal  assistance  and  without  any  person  letting  her  know  that 
she  could  make  out  a  good  title  and  obtain  four  or  five  times  that 
amount. 


SECTION  III.    DURESS  AND  UNDUE  INFLUENCE 


UNITED  STATES,  LYON,  ET  AL  v.  HUCKABEE. 

(Supreme  Court  of  the  United  States,  1872,  16  Wall.  414.) 

Mr.  Justice  CLiifFORD.  .  .  .  Duress,  it  must  be  admitted,  is 
a  good  defence  to  a  deed,  or  any  other  written  obligation,  if  it  be  proved 
that  the  instrument  was  procured  by  .such  means ;  nor  is  it  necessary 


Ch.    7.)  DURESS  AND   UXDUE    INFLUENCE.  83 

to  show,  in  order  to  establish  such  a  defence,  that  actual  violence  was 
used,  because  consent  is  the  very  essence  of  a  contract,  and  if  there  be 
complusion  there  is  no  binding  consent,  and  it  is  well  settled  that  moral 
compulsion,  such  as  that  produced  by  threats  to  take  life  or  to  inflict 
great  bodily  harm,  as  well  as  that  produced  by  imprisonment,  is  suffi- 
cient in  legal  contemplation  to  destroy  free  agency,  without  which  there 
can  be  no  contract,  because  in  that  state  of  the  case  there  is  no  consent. 
Unlawful  duress  is  a  good  defense  to  a  contract  if  it  includes  such  de- 
gree of  constraint  or  danger,  either  actually  inflicted  or  threatened 
and  impending,  as  is  sufificient  in  severity  or  apprehension  to  overcome 
the  mind  and  will  of  a  person  of  ordinary  firmness.  Decided  cases  may 
be  found  which  deny  that  contracts  procured  by  menace  of  a  mere  bat- 
tery to  the  person,  or  of  trespass  to  lands,  or  loss  of  goods,  can  be  avoid- 
ed on  that  account,  as  such  threats  it  is  said  are  not  of  a  nature  to  over- 
come the  will  of  a  firm  and  prudent  man;  but  many  other  decisions 
of  high  authority  adopt  a  more  liberal  rule,  and  hold  that  contracts 
procured  by  threats  of  battery  to  the  person,  or  of  destruction  of  prop- 
erty, may  be  avoided  by  proof  of  such  facts,  because,  in  such  a  case, 
there  is  nothing  but  the  form  of  a  contract  without  the  subsance.  Posi- 
tive menace  of  battery  to  the  person,  or  of  trespass  to  lands,  or  of  de- 
struction of  goods,  may  undoubtedly  be,  in  many  cases,  sufficient  to 
overcome  the  mind  and  will  of  a  person  entirely  competent,  in  all  other 
respects,  to  contract,  and  it  is  clear  that  a  contract  made  under  such 
circumstances,  is  as  utterly  without  the  voluntary  consent  of  the  party 
menaced,  as  if  he  were  induced  to  sign  it  by  actual  violence ;  nor  is  the 
reason  assigned  for  the  more  stringent  rule,  that  he  should  rely  upon 
the  law  for  redress,  satisfactory,  as  the  law  may  not  afford  him  any- 
thing like  a  suf^cient  and  adequate  compensation  for  the  injury.     .     . 


MORSE  V.  WOODWORTH. 

(Supreme  Court  of  Massachusetts,  1891;  155  Mass.,  233,  27  N.  R.  1010.) 

Knowlton,  J.  .  .  .  The  only  remaining  exceptions  relate  to 
the  requests  of  the  defendant  and  the  rulings  of  the  court  in  regard  to 
duress.  The  plaintiff  contended  that  he  gave  ui)  the  notes  and  signed 
the  release  under  duress  by  threats  of  imprisonment.    The  question  of 


84  EEScissiON.  (Part  3 

law  involved  is  whether  one  who  believes  and  has  reason  to  believe  that 
another  has  committed  a  crime,  and  who,  by  threats  of  prosecution  and 
imprisonment  for  the  crime,  overcomes  the  will  of  the  other,  and  in- 
duces him  to  execute  a  contract  which  he  would  not  have  made  volun- 
tarily, can  enforce  the  contract  if  the  other  attempts  to  avoid  it  on  the 
ground  of  duress. 

Duress  at  the  common  law  is  of  two  kinds,  duress  by  imprisonment 
and  duress  by  threats.  Some  of  the  definitions  of  duress  per  minas  are 
not  broad  enough  to  include  constraint  by  threats  of  imprisonment. 
But  it  is  well  settled  that  threats  of  tmlawful  imprisonment  may  be 
made  the  means  of  duress,  as  well  as  threats  of  grievous  bodily  harm. 
The  rule  as  to  duress  per  minas  has  now  a  broader  application  than 
formerly.  It  is  founded  on  the  principle  that  a  contract  rests  on  the 
free  and  voluntary  action  of  the  minds  of  the  parties  meeting  in  an 
agreement  which  is  to  be  binding  upon  them.  If  an  influence  is  exerted 
on  one  of  them  of  such  a  kind  as  to  overcome  his  will  and  compel  a 
formal  assent  to  an  undertaking  when  he  does  not  really  agree  to  it, 
and  so  to  make  that  appear  to  be  his  act  which  is  not  his  but  another's, 
imposed  on  him  through  fear  which  deprives  him  of  self-control,  there 
is  no  contract  unless  the  other  deals  with  him  in  good  faith,  in  igno- 
rance of  the  improper  influence,  and  in  the  belief  that  he  is  acting 
voluntarily. 

To  set  aside  a  contract  for  duress  it  must  be  shown,  first,  that  the 
will  of  one  of  the  parties  was  overcome,  and  that  he  was  thus  sub- 
jected to  the  power  of  another,  and  that  the  means  used  to  induce  him 
to  act  were  of  such  a  kind  as  would  overcome  the  mind  and  will  of 
an  ordinary  person.  It  has  often  been  held  that  threats  of  civil  suits 
and  of  ordinary  proceedings  against  property  are  not  enough,  because 
ordinary  persons  do  not  cease  to  act  voluntarily  on  account  of  such 
threats.  But  threats  of  imprisonment  may  be  so  violent  and  forceful 
as  to  have  that  effect.  It  must  also  be  shown  that  the  other  party  to 
the  contract  is  not,  through  ignorance  of  the  duress  or  for  any  other 
reason,  in  a  position  which  entitles  him  to  take  advantage  of  a  contract 
made  under  constraint  without  voluntary  assent  to  it.  If  he  knows  that 
means  have  been  used  to  overcome  the  will  of  him  with  whom  he  is 
dealing,  so  that  he  is  to  obtain  a  formal  agreement  which  is  not  a  real 
agreement,  it  is  against  equity  and  good  conscience  for  him  to  become  a 
party  to  the  contract,  and  it  is  unlawful  for  him  to  attempt  to  gain  a 
benefit  from  such  an  influence  improperly  exerted. 


Ch.    7.)  DURESS  AND   UNDUE    INFLUENCE.  85 

A  contract  obtained  by  duress  of  unlawful  imprisonment  is  voidable. 
And  if  the  imprisonment  is  under  legal  process  in  regular  form,  it  is 
nevertheless  unlawful  as  against  one  who  procured  it  improperly  for  the 
purpose  of  obtaining  the  execution  of  a  contract;  and  a  contract  ob- 
tained by  means  of  it  is  voidable  for  duress.  So  it  has  been  said  that 
imprisonment  under  a  legal  process  issued  for  a  just  cause  is  duress  that 
will  avoid  a  contract  if  such  imprisonment  is  unlawfully  used  to  ob- 
tain the  contract.  Richardson  v.  Duncan,  3  N.  H.  508.  See  also  Foshay 
V.  Ferguson,  5  Hill,  (N.  Y.)  153;  United  States  v.  Huckabee,  16 
Wall.  414,  431 ;  Miller  v.  Miller,  68  Penn.  St.  486 ;  Walbridge  v.  Arnold, 
21  Conn.  424 ;  Wood  v.  Graves,  144  Mass.  365,  and  cases  cited. 

It  has  sometimes  been  held  that  threats  of  imprisonment,  to  con- 
stitue  duress,  must  be  of  unlawful  imprisonment.  But  the  question  is 
whether  the  threat  is  of  imprisonment  which  will  be  unlawful  in  refer- 
ence to  the  conduct  of  the  threatener  who  is  seeking  to  obtain  a  con-, 
tract  by  his  threat.  Imprisonment  that  is  suffered  through  the  execu- 
tion of  a  threat  which  was  made  for  the  purpose  of  forcing  a  guilty 
person  to  enter  into  a  contract  may  be  lawful  as  against  the  authori- 
ties and  the  public,  but  unlawful  as  against  the  threatener,  when  con- 
sidered in  reference  to  his  effort  to  use  for  his  private  benefit  proc- 
esses provided  for  the  protection  of  the  public  and  the  punishment  of 
crime.  One  who  has  overcome  the  mind  and  will  of  another  for  his 
own  advantage,  under  such  circumstances,  is  guilty  of  a  perversion 
and  abuse  of  laws  which  were  made  for  another  purpose,  and  he  is 
in  no  position  to  claim  the  advantage  of  a  formal  contract  obtained  in 
that  way,  on  the  ground  that  the  rights  of  the  parties  are  to  be  deter- 
mined by  their  language  and  their  overt  acts,  without  reference  to  the 
influences  which  moved  them.  In  such  a  case,  there  is  no  reason  wuy 
one  should  be  bound  by  a  contract  obtained  by  force,  which  in  reality 
is  not  his,  but  another's. 

We  are  aware  that  there  are  cases  which  tend  to  support  the  con- 
tention of  the  defendant.  Harmon  v.  Harmon,  61  Maine,  227;  Bodine 
V.  Morgan,  10  Stew.  426,  428 ;  Landa  v.  Obert,  45  Texas.  539 ;  Knapp 
V.  Hyde,  60  Barb.  80.  But  we  are  of  opinion  that  the  view  of  the 
subject  heretofore  taken  by  this  court,  which  we  have  followed  in  this 
opinion,  rests  on  sound  principles,  and  is  in  conformity  with  most  of 
the  recent  decisions  in  such  cases,  both  in  Kngland  and  America.  Hack- 
ett  V.  King,  6  Allen,  58.    Taylor  v.  ja(|ues.  106  Mass.  291  ;  Harris  v. 


86 


EEScissiON.  (Part  3 


Carmody,  131  Mass.  51;  Bryant  v.  Peck  &  Whipple  Co.  154  Mass. 
460.  Williams  v.  Bayley,  L.  R.  1  H.  L.  200;  S.  C.  4  Giff.  638,  663, 
note;  Eadie  v.  Slimmon,  26  N.  Y.  9;  Adams  v.  National  Bank, 
116  N.  Y.  606;  Foley  v.  Greene,  14  R.  I.  618;  Sharon  v.  Gager,  46 
Conn.  189;  Bane  v.  Detrick,  52  111.  19;  Fay  v.  Oatley,  6  Wis.  42. 

We  do  not  intimate  that  a  note  given  in  consideration  of  money 
embezzled  from  the  payee  can  be  avoided  on  the  ground  of  duress, 
merely  because  the  fear  of  arrest  and  imprisonment,  if  he  failed  to  pay, 
was  one  of  the  inducements  to  the  embezzler  to  make  the  note.  But 
if  the  fact  that  he  is  liable  to  arrest  and  imprisonment  is  used  as  a 
threat  to  overcome  his  will  and  compel  a  settlement  which  he  would 
not  have  made  voluntarily,  the  case  is  different.  The  question  in  every 
such  case  is,  whether  his  liability  to  imprisonment  was  used  against 
him,  by  way  of  a  threat,  to  force  a  settlement.  If  so,  the  use  was  im- 
proper and  unlawful,  and  if  the  threats  were  such  as  would  naturally 
overcome  the  mind  and  will  of  an  ordinary  man,  and  if  they  overcame 
his,  he  may  avoid  the  settlement.  The  rulings  and  refusals  to  rule  were 
correct. 


DUNN  V.  DUNN. 
(New  Jersey  Court  of  Chancery,  1886,  42  N.  J.  Eq.  431.) 

MagiE,  J.  .  .  .  When  two  parties  stand  toward  each  other  in 
any  relation  which  necessarily  induces  one  to  put  confidence  in  the 
other,  and  gives  to  the  latter  the  influence  which  naturally  grows  out 
of  such  confidence,  and  a  sale  is  made  by  the  former  to  the  latter,  equity 
raises  a  presumption  against  the  validity  of  the  transaction.  To  sus- 
tain it  the  buyer  must  show  affirmatively  that  the  transaction  was  con- 
ducted in  perfectly  good  faith,  without  pressure  of  influence  on  his 
part,  with  complete  knowledge  of  the  situation  and  circumstances,  and 
of  entire  freedom  of  action  on  the  part  of  the  seller.  When  the  con- 
fidential relation  is  that  of  attorney  and  client,  the  attorney,  who  buys, 
must  also  show  that  he  gave  to  his  client,  who  sells,  full  information 
and  disinterested  advice.  In  the  leading  case  of  Gibson  v.  Jeyes,  6  Ves. 
266,  Lord  Eldon  said :  "The  attorney  must  prove  that  his  diligence  to  do 
the  best  for  his  vendor  has  been  as  great  as  if  he  was  only  an  attorney 
deahng  for  that  vendor  with  a  stranger."  Chancellor  Walworth  said; 


Ch.  7.)  DUEESS  AND  TXDUE  IXFLUEXCE.  87 

"The  attorney  can  never  sustain  a  purchase  of  this  kind  without  show- 
ing that  he  communicated  to  his  cHents  everything  which  was  necessary 
to  enable  them  to  form  a  correct  judgment  of  the  actual  value  of  the 
subject  of  the  purchase,  and  as  to  the  propriety  of  selling  at  the  price 
offered,  and  his  neglect  to  ascertain  the  true  state  of  the  facts  himself 
will  not  sustain  his  purchase."  Howell  v.  Ransom,  11  Paige  538.     .     . 

Upon  Holt's  appeal,  the  first  question  is  whether  there  existed  a 
confidential  relation  between  Holt  and  the  complainant  respecting  the 
bond  and  mortgage.  I  think  the  conclusion  reached  by  the  vice-chan- 
cellor in  this  respect  was  entirely  correct.  Holt  was  a  well-known 
attorney,  and  held  the  bond  and  mortgage  in  his  possession  for  a  long 
time,  collecting  the  interest  for  complainant,  for  which  service  he  was 
paid  a  stipulated  compensation.  He  had  advanced  her  $550  and  taken 
her  note  therefor,  with  an  absolute  assignment  of  the  bond  and  mort- 
gage as  security.  When  the  obligors  became  insolvent,  he  went  to 
Philadelphia,  where  complainant  lived,  and  gave  her  a  statement  of  the 
situation  of  affairs.  She  called  on  him  in  Trenton.  At  these  and  other 
interviews  she  asked  for  and  obtained  from  him  information  respecting 
the  lien  of  her  mortgage  and  its  relation  to  other  mortgages  on  the  same 
premises — facts  necessarily  affecting  the  value  of  her  security.  The 
information  was  such  as  would  naturally  be  sought  from  an  attorney, 
and  it  was  imparted  by  Holt  as  if  in  recognition  of  her  right  to  such 
service.  The  whole  circumstances  clearly  indicate  that  complainant 
looked  on  Holt  as  her  adviser,  and  that  he  acknowledged  her  right  to 
do  so.  I  have  no  doubt  at  all  that  a  confidential  relation  did  exist,  and 
that  it  was  the  relation  of  attorney  and  client. 

Nor  is  there  anything  in  the  claim  urged  here  that  this  relation  had 
ceased  to  exist  when  Holt  made  this  purchase.  When  the  existence 
of  such  a  relation  has  once  been  established  by  proof,  it  will  be  pre- 
sumed to  continue,  unless  its  cessation  is  shown.  Kerr  on  Fraud,  153. 
The  contention  is  that  complainant,  by  appointing  Murphy  her  agent 
to  sell  the  bond  and  mortgage,  put  an  end  to  the  confidential  relation 
with  Holt.  But  this  is  obviously  not  lo  be  conceded.  The  agency  of 
Murphy  was  not  at  all  inconsistent  with  the  relation  of  his  principal 
and  her  attorney,  nor  could  it  relieve  that  attorney  from  any  of  his 
obligations  or  duties  to  his  client.  Where  a  client  had  become  bank- 
rupt, a  purchase  by  his  solicitor  from  the  trustee  in  banknipfcy  lias 
been  held  to  be  incapable  of  enforcement.  Peard  v.  Morton,  L.  K. 
(25  Ch.  Div.)  394. 


88  EEscissiON.  (Part 


Holt  was  therefore  properly  held  to  have  been  complainant's  at- 
torney at  the  time  he  acquired  from  her  the  bond  and  mortgage,  and 
to  sustain  his  purchase  he  must  show  the  requisites  which  equity  exacts 
in  such  transactions.  These  requisites,  as  we  have  seen,  are,  on  his  part, 
perfect  good  faith,  absence  of  the  pressure  of  the  influence  acquired 
by  the  confidential  relation,  and  the  imparting  of  full  information  and 
disinterested  advice  to  the  client  respecting  the  transaction — on  her 
part,  complete  knowledge  of  the  circumstances  and  entire  freedom  of 
action. 

We  are  not  required  to  determine  that  the  attorney  actually  failed 
in  the  performance  of  these  required  duties.  The  invalidity  of  the 
transaction  will  result  from  a  judicial  determination  that  he  has  failed 
to  show  that  he  performed  those  duties.     .     .     . 


SECTION  IV.    ILLEGALITY— BREACH  OF  CONTRACT 


BATTY  V.  CHESTER. 

(In  Chancery,  1842,  5  Beav.  103.) 

The  Master  of  the  Rolls.  This  bill  prays  that  a  deed,  dated  the 
1st  of  May  1841,  may  be  declared  to  be  in  equity  void,  and  may  be 
delivered  up  to  be  cancelled;  and  that  the  Defendants,  the  trustees 
named  in  the  deed,  may  be  restrained  from  prosecuting  an  action 
against  the  Plaintifif.  The  bill  states,  in  substance,  that  the  Plaintifif 
formed  an  illicit  connection  with  a  woman  of  immoral  conduct ;  that, 
with  a  view  to  that  connection,  and  in  consideration  of  prospective 
cohabitation,  he  agreed  to  make  a  provision  for  her  during  the  co- 
habitation, but  no  longer;  that  the  deed,  which  was  prepared,  and 
which  he  executed,  was  so  framed  as  to  secure  a  permanent  provision 
for  the  woman,  and  was,  in  that  respect,  contrary  to  the  plaintiff's 
agreement ;  that  some  time  after  the  execution  of  the  deed  the  woman 
left  the  Plaintiff  to  live  with  another  man ;  that  by  her  such  conduct, 
the  Plaintiff,  according  to  the  terms  of  the  agreement,  became  wholly 
released  from  every  obligation  to  her ;  but  that  she,  relying  on  the  in- 


Ch.    7.)  ILLEGALITY BREACH     OF     COXTRACT.  89 

accuracies  in  the  deed,  had  prevailed  on  the  trustees  to  proceed  at  law 
against  the  Plaintiff,  to  compel  him  to  perforrA  his  covenants.  The 
Plaintiff  complains  of  this ;  and  in  a  letter  to  the  woman,  which  he  has 
set  out  in  his  bill,  he  alleges  that  "reciprocity  was  a  positive  and  sub- 
stantial essential"  of  the  arrangement.  The  meaning  of  this  and  the 
grounds  of  complaints  are  obvious;  and  although  the  Plaintiff  has 
occasionally,  in  the  course  of  his  bill,  stated  the  deed  to  be  voluntarily 
made  for  an  immoral  consideration,  and  void,  yet  it  is  plain  that  the 
bill  and  the  Plaintiff's  title  to  relief  rests,  in  part  at  least,  upon  the 
supposed  injustice  of  his  being  required  to  perform  his  covenants  after 
he  has  lost  the  consideration  for  which  he  entered  into  them.  In  sub- 
stance, the  Plaintiff  alleges,  that  he  ought  not  to  be  required  to  per- 
form his  covenants,  because  he  has  lost  the  cohabitation, —  the  reciproc- 
ity, that  is,  the  immoral  connection  or  services  which  the  woman 
agreed  to  afford  him.     ... 

In  this  bill  the  plaintiff  claims  relief,  in  part  at  least,  upon 
the  ground  that  he  is  released  from  his  obligation  by  the  woman  having 
ceased  to  live  an  immoral  life  in  connection  with  him;  and  I  am  of 
opinion,  that  upon  a  bill  so  framed  the  Plaintiff  can  have  no  relief. 
Let  the  demurrer  be  allowed. 


DUVAL  V.  WELLMAN. 

(New  York  Court  of  Appeals,  1891,  124  N.  Y.  156,  26  N    E.  343.) 

Brown,  J.  ...  It  appears  from  the  evidence  that  the  plaintiff 
is  the  assignee  of  Mrs.  E.  Guion,  a  widow  lady,  who,  in  her  search  for 
a  husband,  sought  the  advice  and  aid  of  the  defendant,  who  was  the 
owner  and  publisher  of  a  matrimonial  journal  called  "The  New  York 
Cupid,"  and  the  proprietor  of  a  matrimonial  bureau  in  New  York  city. 

Mrs.  Guion's  testimony  was  to  the  effect  that  in  June.  1886,  she 
became  a  patron  of  the  defendant's  establishment,  and  paid  the  usual 
registration  fee  of  five  dollars.  That  she  was  introduced  to  thirty  or 
forty  gentlemen,  but  found  none  whom  she  was  willing  to  accept  as  a 
husband,  and  that  in  June,  1887,  for  the  purpose  of  stimulating  the 
defendant's  efforts  in  her  behalf,  she  paid  him  fifty  dollars,  whereupon 
there  was  executed  the  following  instrument : 


90  EEScissiON.  (Part 


o 


"June  2nd,  1887. 

"Due  Mrs.  Guion  from  Mr.  Wellman  fifty  dollars  ($50.00),  Aug. 
15th,  if  at  that  time  she  is  willing  to  give  up  all  acquaintance  with 
jjentlemen  who  were  introduced  in  any  manner  by  H.  B.  Wellman.  If 
Mrs.  Guion  marry  the  gentleman  whom  we  introduce  her  to,  an  ad- 
ditional fifty  dollars  ($50.00)  is  due  Mr.  Wellman  from  Mrs.  Guion. 

"(Signed,)         H.  B.  WELLMAN. 
"E.  GUION." 

In  August,  1887,  Mrs.  Guion,  not  finding  a  congenial  companion 
among  any  of  the  men  to  whom  she  had  been  introduced  and  claiming 
to  be  willing  to  give  up  all  acquaintance  with  them,  demanded  from 
defendant  the  return  of  the  money  paid,  which,  being  refused,  the 
claim  was  assigned  to  plaintiff  and  this  action  was  commenced.     .     .     . 

The  question  in  this  and  kindred  cases,  therefore,  must  always  be 
whether  the  parties  are  equal  in  guilt.  Obviously  cases  might  arise 
where  this  would  clearly  appear  and  where  the  court  would  be  justified 
in  so  holding  as  a  matter  of  law,  as  where  there  was  an  agreement  be- 
tween two,  having  for  its  purpose  the  marriage  of  one  to  a  third  party, 
the  parties  would  be  so  clearly  in  pari  delicto  that  the  courts  would 
not  aid  the  one  who  paid  money  to  the  other  in  the  promotion  of  the 
common  purpose,  to  recover  it  back.  Such  a  case  would  partake  of 
the  character  of  a  conspiracy  to  defraud.  So  if  two  parties  entered 
into  a  partnership  to  carry  on  such  a  business  as  defendant  conducted, 
the  courts  would  not  lend  their  aid  to  either  to  enforce  the  agreement 
between  them. 

But  where  a  party  carries  on  a  business  of  promoting  marriage  as 
the  defendant  appears  to  have  done,  it  is  plain  to  be  seen  that  the 
natural  tendency  of  such  a  business  is  immoral  and  it  would  be  so 
clearly  the  policy  of  the  law  to  suppress  it  and  public  interest  would 
be  so  greatly  promoted  by  its  suppression,  that  there  would  be  no 
hesitation  upon  the  part  of  the  courts  to  aid  the  party  who  had  patron- 
ized such  a  business  by  relieving  him  or  her  from  all  contracts  made, 
and  grant  restitution  of  any  money  paid  or  property  transferred.  In 
that  way  only  could  the  policy  of  the  law  be  enforced  and  public  in- 
terests promoted. 

Contracts  of  this  sort  are  considered  as  fraudulent  in  their  char- 
acter and  parties  who  pay  money  for  the  purpose  of  procuring  a  hus- 
band or  wife  will  be  regarded  as  under  a  species  of  imposition  or  un- 
due influence.     ... 


Ch.    7.)  ILLEGALITY BREACH     OF     CONTRACT.  91 

We  are  of  the  opinion,  therefore,  that  it  was  error  to  hold  as  a  legal 
conclusion  that  the  parties  to  the  contract  in  question  were  equal  in 
guilt.     .     .     . 

Our  opinion  is  that  the  same  reasons  that  have  induced  courts  to 
declare  contracts  for  the  promotion  of  marriage  void,  dictate  with  equal 
force  that  they  should  be  set  aside  and  the  parties  restored  to  their 
original  position.  To  decide  that  money  could  not  be  recovered  back 
would  be  to  establish  the  rules  by  which  the  defendant  and  others  of 
the  same  ilk  could  ply  their  trade  and  secure  themselves  in  the  fruits 
of  their  illegal  transactions.     .     .     . 


WAMPLER  V.  WAMPLER. 

(Court  of  Appeals  of  Virginia,  1878,  30  C-ratt.  454.) 

This  was  an  appeal  from  the  decree  of  the  circuit  court  of  Bland 
county  dismissing  a  bill  filed  by  Abraham  Wampler  against  his  son, 
Ephraim  Wampler,  to  set  aside  a  deed  which  the  plaintiff  and  his  wife 
had  executed,  conveying  a  tract  of  land  to  the  said  Ephraim  Wampler. 
The  defendant  demurred  to  the  bill.     .     .     . 

Christian,  J.  .  .  .  Upon  the  demurrer,  of  course,  all  the  allega- 
tions of  the  bill  must  be  taken  as  true.  It  is  plain  that  the  plaintiff  did 
not  have  a  complete  and  adequate  remedy  at  law.  The  consideration 
for  the  deed  of  conveyance  for  the  land,  as  alleged  in  the  bill,  was  the 
comfortable  support  of  the  grantor  and  his  wife  during  their  lives, 
and  the  erection  on  the  land  conveyed  of  a  good  and  comfortable  house. 
This  was  a  continuing  obligation  on  the  part  of  the  grantee.  It  was 
to  continue  during  the  lives  of  the  grantors  and  each  of  them.  At  the 
end  of  the  first  year,  or  sooner,  the  grantors  had  the  right  of  action, 
if  the  covenant  for  support  was  not  complied  with,  for  a  breach  of  the 
covenant.  In  such  action  damages  could  be  recovered  only  for  the 
refusal  of  the  grantee  to  perform  his  covenant  up  to  the  time  of  the 
commencement  of  the  suit. 

But  the  obligation  for  support  and  maintenance  continued  for  an 
indefinite  time,  during  the  lives  of  the  grantors  and  each  of  them;  it 
may  be  for  ten  or  twenty  years.     Must  the  grantors  bring  their  suit, 
every  six  months  or  twelve  months  for  damages  for  a  failure  upon  the 


92  EESCissiON.  (Part  'J 

part  of  the  grantee  to  supply  them  with  food  and  clothing?  And  in 
the  meantime,  having  conveyed  their  all  to  the  grantee,  having  deprived 
themselves  of  the  means  of  support,  must  they  suffer  and  starve  until 
by  suits  at  law  and  executions  they  could  compel  the  grantee  to  supply 
them  with  the  means  of  support? 

But  beside  the  consideration  of  support  and  maintenance,  another 
consideration  alleged  in  the  conveyance  (and  this  upon  demurrer  must 
be  taken  to  be  true)  was  that  the  grantee  should  erect  upon  the  land  a 
comfortable  dwelling.  How  could  this  covenant,  so  important  to  the 
comfort  of  the  grantees,  be  enforced  in  a  suit  at  law? 

We  think  that  it  is  clear  that  the  grantors  in  this  case  did  not  have 
a  complete  and  adequate  remedy  at  law,  and  that  upon  the  facts  stated 
in  the  record,  admitted  by  the  demurrer  to  be  true,  a  court  of  equity 
had  the  undoubted  jurisdiction,  there  being  no  complete  and  adequate 
remedy  at  law,  if  not  to  compel  a  specific  performance  of  the  contract 
on  the  part  of  the  grantee,  certainly  to  rescind  the  contract,  annul  and 
set  aside  the  deed,  and  put  the  parties  in  the  same  position  they  were  in 
before  the  contract  was  made  and  the  deed  delivered.     .     .     . 


MATTHEWS  v.  CROWDER. 

(Supreme  Court  of  Tennessee,  1902,  111  Tenn.,  737.) 

Mr.  Justice;  CaldweIvL  delivered  the  opinion  of  the  Court. 

This  is  a  bill  to  rescind  an  executed  sale  of  land.  On  the  18th  of 
April,  1899,  Daniel  Crowder  and  his  wife  sold  16  2-3  acres  of  land  to 
W.  F.  Matthews  for  the  sum  of  $300.  All  parties  believed,  and  Crowd- 
er and  wife  represented,  that  they  owned  the  land  absolutely  in  fee. 
Their  deed  of  conveyance  to  Matthews  was  absolute  in  terms,  and  con- 
tained full  covenant  of  seisin  and  warranty  of  title.  For  the  con- 
sideration Matthews  executed  two  promissory  notes,  which  Crowder 
and  wife  assigned  to  J.  F.  Bailey  in  the  purchase  of  another  tract  of 
land,  which  contained  35  acres,  and  Matthews  paid  the  notes. 

In  October,  1899,  Matthews  discovered  that  Crowder  and  wife  had 
misrepresented  their  title;  that  they  in  fact  had  only  a  life  estate  in 
the  land  sold  to  him  as  aforesaid;  and  because  of  that  fact,  and  the 
further  fact  that  Crowder  and  wife  were  insolvent,  Matthews,  on  the 


Ch.    7.)  ILLEGALITY BREACH     OF     CONTRACT.  93 

16th  day  of  that  month,  brought  this  bill,  seeking  a  rescission.  He 
offered  to  restore  the  tract  he  had  purchased,  and  sought  a  recovery 
for  the  $300  paid ;  and  to  satisfy  that  recovery,  if  not  otherwise  paid, 
he  sought  to  have  both  tracts  sold,  first  the  life  estate  in  the  16  2-3 
acres,  and  then  the  35  acres,  if  necessary.     .     .     . 

The  decree  is  correct.  It  is  true  the  vendee  in  an  executed  sale 
of  land  cannot,  before  eviction,  maintain  a  suit  to  rescind  for  a  mere 
breach  of  the  warranty  of  title,  for  in  that  case  he  is  presumably  pro- 
tected by  that  covenant  in  his  deed;  but  when  insolvency  of  the  vendor, 
as  in  this  instance,  is  superadded  to  such  breach,  that  protection  is 
dissipated,  and  the  vendee,  in  consequence  thereof,  may  have  a  decree 
for  rescission,  though  not  yet  evicted.     .     .     . 


94  BILLS  QUIA  TIMET.  (Part.  S 


CHAPTER  VIII.     BILLS  QUIA  TIMET  AND  TO  REMOVE 

CLOUD  ON  TITLE 


SECTION   I.     CANCELLATION   OF   CONTRACTS 


GALE  V.  LINDO. 

(High  Court  of  Chancery,  1687,  1  Vern.,  475.) 

Thfe  case  was,  that  when  a  marriage  was  treating  between  one 
Gringer  and  the  sister  of  WiUiam  Pitman,  the  woman  not  having  so 
great  a  portion  as  the  man  insisted  upon,  she  prevails  with  her  brother 
Pitman  to  let  her  have  160  pounds  to  make  up  her  portion,  and  gave 
him  bond  for  re-payment  of  it ;  and  thereupon  the  marriage  was  had ; 
and  the  husband,  who  knew  nothing  of  the  bond,  died  without  issue, 
and  his  wife  survived  him,  and  afterwards  died  having  made  her  will, 
and  the  plaintiff  executor.  William  Pitman  the  brother  dies,  and  makes 
the  defendant  his  executor,  who  put  the  bond  in  suit  against  the  plain- 
tiff, as  executor  of  the  widow,  to  recover  back  the  160  pounds  and 
thereupon  he  brings  his  bill  to  be  relieved. 

For  the  defendant  is  was  insisted,  that  although  this  might  be  a 
fraud,  as  against  the  husband  or  any  issue  of  his,  who  are  to  have  the 
benefit  of  the  marriage  agreement;  yet  the  husband  being  dead,  and 
there  being  no  issue,  this  bond  is  good  against  the  woman  herself,  and 
by  consequence  against  her  executor,  there  being  no  creditors  in  the 
case,  or  any  deficiency  of  assets  pretended. 

Lord  Chancellor.  You  admit  the  husband  might  have  been  re- 
lieved on  a  bill  brought  by  him  and  his  wife;  that  which  was  once  a 
fraud,  will  be  always  so ;  and  the  accident  of  the  woman's  surviving 
the  husband  will  not  better  the  case.  Decreed  the  bond  to  be  delivered 
up,  and  a  perpetual  injunction  against  it. 


Cll.    8.)  CANCELL-^TION    OF  COXTEACTS.  95 

Quaere. — If  the  condition  of  the  bond  had  been,  that  in  case  the 
woman  survived  her  husband,  that  she  should  repay  it,  whether  she 
could  have  been  relieved  ? 


PAPKE  v.  HAMMOND  CO. 

(Supreme  Court  of  Illinois,  1901,  192  111.,  631,  61  N.  E.  910.) 

Mr.  Justice  Magruder.  ...  It  seems  to  be  well  settled  that, 
when  the  signature  to  an  instrument  under  seal  is  procured  by  false 
representations,  the  nature  of  the  instrument  being  fully  understood 
by  the  party  signing  it,  the  effect  of  such  instrument  can  only  be  avoid- 
ed by  a  separate  proceeding  in  equity. 

Perhaps  the  leading  case  upon  this  subject  in  this  country  is  the 
case  of  George  v.  Tate,  102  U.  S.  564,  where  the  Supreme  Court  of 
the  United  States  say:  "It  is  well  settled  that  the  only  fraud,  per- 
missible to  be  proved  at  law  in  these  cases,  is  fraud  touching  the  exe- 
cution of  the  instrument,  such  as  misreading,  the  surreptitious  sub- 
stitution of  one  paper  for  another,  or  obtaining  by  some  other  trick  or 
device  an  instrument  which  the  party  did  not  intend  to  give.  .  .  . 
The  remedy  is  by  a  direct  proceeding  to  avoid  the  instrument."  in  an 
action  at  law  a  written  release,  of  the  character  of  that  here  introduced 
in  evidence,  cannot  be  impeached  for  fraud,  not  inhering  in  the  execu- 
tion thereof,  but  which  only  goes  to  the  extent  of  the  consideration.  In 
Vandervelden  v.  Chicago  and  Northwestern  Railway  Co.,  61  Fed.  Rep. 
54,  it  was  said:  "In  the  States  where  the  two  systems  of  jurisprudence 
prevail, — of  equity  and  the  common  law, — a  court  of  law  refuses  to 
open  the  question  of  fraud  in  the  consideration,  or  in  the  transaction 
out  of  which  the  consideration  arises,  in  a  suit  upon  the  sealed  instru- 
ment, but  turns  the  party  over  to  a  court  of  equity,  where  the  instru- 
ment can  be  set  aside  upon  such  terms  as,  under  all  the  circumstances, 
may  be  equitable  and  just  between  the  parties.  A  court  of  law  can  hold 
no  middle  course;  the  question  is  limited  to  the  validity  or  invalidity  of 
the  deed.  Fraud  in  the  execution  of  the  instrument  has  always  been 
admitted  in  a  court  of  law;  as,  where  it  has  been  misread,  or  some 
other  fraud  or  imposition  lias  been  practiced  upon  tlu-  parly  in  pro- 
curing his  signature  and  seal.  The  fraud  in  this  aspect  goes  to  the 
question  whether  or  not  the  instrument  ever  had  any  legal  existence. 


96  BILLS  QUIA  TIMET.  (Part.  3' 

(Hartshorn  V.  Day,  19  How.  211).  .  .  .  It  is,  therefore,  necessary, 
where  the  party  desires  to  escape  the  legal  bar  created  by  a  written 
instrument  by  him  duly  executed,  knowing,  at  the  time  of  execution, 
its  legal  effect,  and  especially  where  the  other  party  has  performed  the 
contract  on  his  part,  that  the  remedy  should  be  by  means  of  a  direct 
proceeding  to  avoid  the  instrument,  or,  in  other  words,  by  a  proceeding 
in  equity.  Until  the  instrument  is  annulled  by  a  decree  to  that  efifect 
in  a  further  proceeding,  its  legal  effect  remains  unimpaired.  It  stands 
between  the  parties  as  a  valid  legal  contract  of  settlement ;  and,  in  an 
action  at  law  upon  the  original  cause  of  action,  the  defendant  may 
plead  and  rely  upon  it,  and  the  court  of  law  is  bound  to  construe  it 
and  enforce  it  according  to  its  legal  effect.  The  legal  effect  of  the 
release  in  this  case  is  to  bar  the  action  of  the  plaintiff."  (Shampeau 
V.  Connecticut  River  Lumber  Co.  42  Fed.  Rep.  760;  Kosztelnik  v. 
Bethlehem  Iron  Co.  91  id.  606.)     .     .     . 


ROBERTS  V.  CENTRAL  LEAD  CO. 

(Missouri  Appeal  Court,  1902,  95  Mo.  App.  581,  69  S.  W.  630.) 

Barclay,  J.  This  suit  presents  two  distinct  phases  defined  by  two 
counts  of  the  petition.  Plaintiff  was  injured  while  in  the  employ  of 
defendant  as  a  miner,  and  he  executed  a  document  which  defendant 
relies  upon  as  a  release  of  liability.  The  first  count  of  plaintiff's  peti- 
tion aims  to  cancel  the  document  on  grounds  to  be  mentioned  more 
fully  presently,  while  the  second  count  states  a  case  for  the  recovery 
of  damages  for  personal  injuries  caused  by  negligence  alleged.     .     .     . 

"Seventh.  Plaintiff  admits  and  states,  that  he  signed  said  pretended 
release  without  any  knowledge  of  its  true  character  and  purpose,  and 
states  that  he  signed  it  under  the  mistaken  belief  or  misapprehension 
that  it  was  a  receipt  for  money. 

"Eighth.  And  further  states,  that  at  the  time  of  signing  said  pre- 
tended release  he  was  suffering  great  mental  and  physical  pain,  that 
his  mind  in  consequence  thereof,  and  of  taking  and  having  taken  prior 
thereto  large  and  frequent  does  of  opiates  in  one  form  and  another  to 
temper  his  sufferings,  aforesaid,  was  clouded  and  impaired,  so  much 
so  that  he  did  not  comprehend  his  acts,  and  did  not  realize,  not  having 


CI].    8.)  CAXCELL.\TIOX    OF  COXTRACTS.  97 

heard  read  said  pretended  release,  and  not  being  able  to  read  it,  what 
he  had  done,  when  he  signed  said  pretended  paper.     .     .     . 

We  consider  that  the  petition  states  a  good  cause  of  action  for  the 
cancellation  of  the  document  in  question.  If  plaintiff  was  reduced  by 
his  injury  and  the  necessary  treatment  thereof  to  the  physical  ex- 
tremity portrayed  in  the  petition,  he  was  not  in  a  fit  or  competent 
condition  to  assume  the  obligation  of  release  expressed  in  the  instru- 
ment, in  the  circumstances  described. 

It  is  immaterial  that  plaintiff  might  have  interposed  the  same  facts 
as  a  bar  to  defendant's  use  of  the  document  as  a  defense  to  plaintiff's 
claim  as  is  held  might  be  done  in  Courtney  v.  Blackwell.  150  Mo.  245. 
That  privilege  would  not  exclude  plaintiff's  right  to  invoke  the  ancient 
jurisdiction  of  equity  to  eliminate  by  cancellation  the  paper  as  an 
impediment  to  the  enjoyment  of  his  rights,  its  invalidity  not  appearing 
on  its  face.  Dunn  v.  Miller,  96  Mo.  324;  Pomeroy  Eq.  Juris.  (2  Ed.), 
sec.  1377. 

In  this  State  the  practice  pursued  in  this  case  has  been  sanctioned 
from  a  date  as  early  at  least  as  the  decision  in  Blair  v.  Railroad,  89 
Mo.  382,  and  is  unquestionable  law.  The  enactment  of  a  late  statute 
touching  the  mode  of  pleading  and  practice,  where  such  a  document 
is  interposed  as  a  defense  (R.  S.  1899.  sec.  654),  does  not  abrogate  the 
jurisdiction  of  equity  to  cancel  such  instruments,  there  being  no  in- 
tent exhibited  by  the  enactment  to  accomplish  such  abrogation.  The 
remedial  jurisdiction  of  equity  is  not  destroyed  by  the  passage  of  a 
measure  creating  a  statutory  remedy  at  law  in  like  circumstances,  in 
the  absence  of  an  expression  of  legislative  purpose  to  extinguish  the 
ancient  iurisdiction.    Woodward  v.  Woodward,  148  Mo.  241.     .     .     . 


THORNTON  v.   KNIGHT. 

(Cases  in  Chancery,  1849,  16  Sim.  509.) 

The  insurers  of  a  ship  having  brought  an  action  on  the  policy,  against 
the  underwriter,  the  latter  filed  the  bill  In  this  Cause,  for  a  discovery 
in  aid  of  his  defence  to  the  action,  alleging  that  the  ship  had  deviated 
on  her  voyage,  and  also  that  she  was  unseaworthy  when  the  ])()1icy  was 
effected,  and  praying  for  an  injunction  to  restrain  the  action,  and 
3  Eq— 7 


98  BILLS  QUIA  TIMET.  (Part.  3 

that  the  policy  might  be  delivered  up  to  the  underwriter  to  be  cancell- 
ed. The  injunction  was  obtained  for  want  of  answer,  but  was  dis- 
solved on  the  answer  coming  in.  At  the  trial  of  the  action,  the  under- 
writer proved  the  deviation,  and  obtained  a  verdict  on  that  ground ; 
but  failed  in  proving  unseaworthiness.     .     .     . 

The  Vice;  ChancklIvOR,  The  bill  alleges  two  grounds  for  the  re- 
lief which  it  asks,  namely,  deviation  and  unseaworthiness.  In  support 
of  the  former,  the  Plaintiff  relies  on  the  verdict  which  he  has  obtained 
at  Law;  but  he  has  produced  nothing,  whatever,  in  support  of  the 
latter. 

If  the  policy,  though  good  on  the  face  of  it,  had  been  proved  to 
be  void  on  the  ground  that  the  representation  made  by  the  insurers, 
when  they  effected  it,  as  to  the  seaworthiness  of  the  ship,  was  false,  I 
could  have  interfered ;  for  then  a  case  of  fraud  would  have  been  made 
out  against  the  insurers.  But  I  cannot  interfere  on  the  mere  ground 
of  deviation,  unless  this  Court  has  a  concurrent  jurisdiction  with  a 
Court  of  Law,  in  all  cases  in  which  relief  is  sought  against  instruments 
like  the  one  in  question.  That,  however,  is  not  so;  and,  therefore,  I 
shall  dismiss  the  bill  with  costs. 


COOPER  V.  JOEL. 

(In  Chancery,   1859,   27   Beav.   313.) 

The  Master  of  the  Rolls.  After  reading  the  evidence  very  care- 
fully I  have  come  to  the  conclusion  that  the  Plaintiff  is  entitled  to  a 
decree.  It  was,  in  the  first  place,  contended,  on  behalf  of  the  Defend- 
ants, that  the  Court  had  no  jurisdiction  to  order  the  instrument  in 
question  to  be  delivered  up;  but  I  am  of  a  different  opinion.  The 
principle  upon  which  the  Court  orders  a  legal  instrument  to  be  deliver- 
ed up  is  well  expressed  in  Simpson  v.  Lord  Howden  (a),  and  the 
authorities  there  cited.  That  principle  may  be  thus  stated: — If  a  legal 
instrument  has  stated  on  the  face  of  it  the  defect  which  makes  it  im- 
possible to  sue  at  law,  this  Court  will  not  interfere;  but,  if  a  legal 
instrument  has  no  defect  on  the  face  of  it,  but  by  reason  of  the  cir- 
cumstances connected  with  it,  it  would  be  inequitable  to  allow  a  person 

(a)  3  Myl.  &  Cr.  97. 


Cll.    8.)  CAXCELLuVTIOX    OF  CONTRACTS.  99 

to  proceed  at  law  upon  it,  or  if  there  be  a  good  legal  defence,  not  ap- 
pearing on  the  instrument  itself,  which  the  lapse  of  time  may  cause 
the  person  chargeable  upon  the  instrument  from  loss  of  the  evidence 
necessary  for  his  defense  at  law  to  be  unable  to  make  available,  then 
this  Court  will  interfere  and  order  the  instrument  to  be  delivered  up 
to  be  cancelled.  To  use  the  words  of  Lord  Cottenham  (b),  the  Court 
orders  such  documents  to  be  delivered  up  in  consequence  of  "the  danger 
that  the  lapse  of  time  might  deprive  the  party  to  be  charged  upon  it 
of  the  means  of  defence."  I  am,  therefore,  of  opinion  that  the  Court 
has  jurisdiction  in  this  case,  because  there  is  no  legal  defect  apparent 
on  the  face  of  this  guarantee.     .     .     . 

The  case  is  this : — There  were  five  executions  upon  five  judgments, 
and  the  sheriff  who  had  taken  possession  of  the  lady's  property, 
which  was  considered  of  great  value,  was  about  to  sell  it.  The  Plain- 
tiffs and  three  other  persons  went  to  the  execution  creditor  and  said 
"we  will  give  you  a  guarantee  for  the  debts,  payable  by  installments, 
provided  you  consent  to  stop  the  sale,"  and  thereupon  the  execution 
creditor  did  consent.  But,  when  they  came  to  the  auctioneer,  it  ap- 
peared that  their  consent  was  not  sufficient  to  stop  the  sale,  and  that  it 
required  the  consent  of  other  persons.  Accordingly,  the  auctioneer 
did  not  stop  the  sale,  and  two  hours  later,  on  the  same  day,  the  per- 
sons who  had  given  the  guarantee  gave  notice  that  as  the  sale  was 
going  on  the  guarantee  was  at  an  end.  Now  the  first  question  is,  what 
were  the  rights  of  the  parties?  I  am  of  opinion  that  the  guarantee  was 
at  an  end,  and  that  it  is  impossible  to  say  that  the  guarantee  was  to 
be  given  in  case  the  execution  creditor  consented  to  stop  the  sale,  al- 
though such  consent  was  ineffectual  to  produce  the  object  for  which  it 
was  given.  The  conmion  sense  and  bona  fides  of  the  transaction  is, 
provided  they  could,  by  means  of  such  consent,  stop  the  sale.  The 
guarantee  proceeded  upon  a  common  understanding  between  them, 
that  the  consent  would  be  effectual  for  that  purpose.  The  object 
was  to  stop  the  sale,  not  to  make  the  execution  creditor  utter  some 
unmeaning  words.  Accordingly,  T  think  that  being  unable  to  stop  the 
sale,  the  notice  given  by  them  that  the  guarantee  was  at  an  vnd  was 

effectual.     .     .     . 

In  that  .state  of  circumstances,  I  think  lliat   the  Defendants  could 
not  succeed  at  law,  and  that  this  would  have  been  a  good  defence  lo  the 

(b)  Ibid.  102. 


100  BILLS  QUIA  TIMET.  (Part  3 

actions.  But,  as  the  case  which  is  made  by  the  Defendants,  upon  the 
affidavits,  confessedly  or  professedly  is,  that  the  proceedings  at  law 
are  only  suspended,  as  they  say  "for  the  present,"  their  argument 
being,  that  they  may  sue  again  upon  a  fresh  installment  under  the 
guarantee  becoming  due,  I  am  of  opinion  (referring  again  to  the  prin- 
ciple laid  down  by  Lord  Cottenham  in  the  case  I  have  referred  to) 
that  as  lapse  of  time  might  deprive  the  Plaintiffs  chargeable  upon  this 
document  of  the  means  of  defence,  and  as  the  Defendants  may  hold 
it,  and  profess  to  hold  it,  for  the  purpose  of  suing  at  a  future  time,  this 
Court  ought  to  interfere  and  direct  it  to  be  delivered  up. 

Therefore  I  must  make  a  decree  to  the  effect,  and  the  costs  must 
follow  the  event. 


VANNATTA  v.  LINDLEY. 

(Supreme  Court  of  Illinois,  1902,  198  111.  40,  G4  N.  E.  735.) 

Mr.  Justice  Wilkin  delivered  the  opinion  of  the  court:  This  is  a 
bill  in  equity  by  appellants,  against  appellees,  to  have  a  promissory  note, 
and  power  of  attorney  to  confess  judgment  thereon,  decreed  null  and 
void  and  delivered  up  to  be  cancelled;  also  to  enjoin  appellees  from 
entering  judgment  thereon.     ... 

The  principal  question  involved  in  the  case  is  whether  the  com- 
plainants had  a  complete  remedy  at  law,  on  the  theory  of  their  bill 
that  the  note  was  a  forgery  or  that  its  execution  was  obtained  by  fraud 
and  circumvention.  It  is  well  understood  that  a  forged  note  is  by  the 
common  law  absolutely  void,  even  in  the  hands  of  an  innocent  pur- 
chaser for  value,  unless  it  has  in  some  way  been  ratified  by  the  payor 
named  in  it,  and  our  statute  provides  "that  if  any  fraud  or  circum- 
vention be  used  in  obtaining  the  making  or  executing  of  any  of  the 
instruments  aforesaid,  (that  is,  negotiable  instruments,)  such  fraud 
or  circumvention  may  be  pleaded  in  bar  to  any  action  to  be  brought 
on  any  such  instrument  so  obtained,  whether  such  action  be  brought 
by  the  party  committing  such  fraud  or  circumvention,  or  any  assignee 
of  such  instrument.'"'  (Kurd's  Stat.  1899,  chap.  98.  sec.  10.)  The  de- 
fense, therefore,  against  a  forged  promissory  note,  or  one  the  execution 
of  which  has  been  obtained  through  fraud  or  circumvention,  by  the 


Ch.    8.)  CANCELLATION    OF  CONTRACTS.  101 

payee,  is  complete  and  adequate  in  an  action  at  law.  (Ehler  v.  Braiin, 
120  111.  503 ;  Easter  v.  Minard,  26  id.  494;  Richardson  v.  Schirtz,  59  id. 
313 ;  Sims  v.  Bice,  67  id.  88.)  That  equity  will  not  in  such  a  case  take 
jurisdiction  for  the  purpose  of  ordering  the  surrender  or  cancellation 
of  a  note  is  also  held  in  Black  v.  ^liller.  173  111.  489.     .     .     . 


MOECKLY  V.  GORTON. 

(Supreme  Court  of  Iowa,  1889,  78  Iowa  202,  42  N.  W.  G48.) 

This  is  an  action  in  equity,  by  which  the  plaintiff  demands  that 
the  defendants  be  enjoined  from  transferring,  selling,  or  in  any  man- 
ner disposing  of,  a  certain  money  order  bank  check,  and  for  a  decree 
declaring  said  check  to  be  null  and  void,  and  cancelling  the  same. 
There  was  a  demurrer  to  the  petition,  which  was  overruled,  and  a 
decree  \vas  entered  as  prayed.    The  defendants  appeal. 

RoTHROCK,    J. — The    petition    is    in    these    words:      "The    plaintitT 

states  (1)  That  heretofore,  to-wit,  on  or  about  the  twenty-seventh  day 

of  November,  1886,  the  plaintiff,  at  the  request  of  one  Julius  A.  Kuntz, 

a  justice  of  the  peace  and  mayor  of  Polk  City,  Iowa,  went  to  his  (said 

Kuntz')    office,  and  there   met   said  Kuntz  and   the   defendant   Wm. 

Gorton,  at  which  time  and  place  said  defendant  accused  this  plaintiff 

of  having  committed  the  crime  of  perjury  in  the  evidence  given  by 

him  as  a  witness  upon  the  trial  of  the  cause  of  Geo.  W.  Miles  against 

said  Wm.  Gorton,  before  C.  P.  Holmes,  a  referee  appointed  to  hear  and 

determine  said  cause  by  the  circuit  court  of  Iowa,  in  and  for  Polk 

county,  in  which  court  said  cause  was  pending;  and  said  Gorton,  at 

said  time  and  place,   further  stated  that,  by  reason  of   said  perjury 

and  false  swearing  of  which  he  accused  this  plaintiff,  he  (said  Gorton) 

has  lost  the  sum  of  five  hundred  dollars,  and  that,  unless  this  ])lain- 

tiff  paid  him  (said  Gorton)  said  sum  of  five  hundred  dollars,  or  give 

him  his  promissory  note  therefor,  said  Gorton  would,  on  the  following 

Monday  morning,  go  before  the  grand  jury  of   Polk  county.   Iowa, 

and  cause  this  plaintiff  to  be  indicted  for  llic  crime  of  perjury.     (2) 

That  plaintiff,  relying  upon   said  Gorton's   promise   not    to  take   any 

action  in  regard  thereto,  did  execute  and  deliver  to  said  Wm.  Gorton 

his  promissory  note  for  the  sum  of  two  hundred  and  fifty  dollars,  pay- 


102  BILLS  QUIA  TIMET.  (Part  3 

able  to  the  order  of  the  wife  of  said  Gorton,  the  defendant  Mary  D. 
Gorton.      (3)      That   no   consideration    for    said   note   passed    from 
either  said  Wm.  Gorton  or  said  Mary  D.  Gorton  to  this  plaintiff,  and 
that  it  was  executed  and  delivered  by  this  plaintiff  for  no  purpose  or 
consideration  whatever,  except  to  avoid  being  criminally  prosecuted  on 
a  charge  of  which  he  was  not  guilty,  as  aforesaid.     (4)     That  plain- 
tiff was  fearful  that  said  defendant  would  transfer  said  note  to  an 
innocent  purchaser,  who  would  have  the  legal  right  to  enforce  collection 
thereof  against  this  plaintiff,  and,  believing  that  his  check,  drawn  upon 
a  bank  where  he  had  no  funds,  would  not  be  negotiable,  he  did,  under 
the  advice  of  said  Kuntz,  draw  his  check  on  the  Des  Moines  Saving 
Bank  for  the  sum  of  two  hundred  and  fifty  dollars,  payable  to  said 
Mary  D.  Gorton,  and  delivered  the  same  to  said  Kuntz,  who  soon 
after  returned  to  this  plaintiff  said  note.     (5)     That  he  is  unable  to 
state  whether  said  check  is  payable  to  said  Mary  D.  Gorton,  or  order, 
or  bearer,  but  he  avers  that,  according  to  his  best  recollection,  it  is 
negotiable.      (6)      That   the   only   consideration    for   said   check   was 
the  surrender  of  said  note.     (7)     That  neither  Mary  D.  Gorton  nor 
Wm.  Gorton  is  financially  responsible,  and,  should  they  transfer  the 
said  check  to  an  innocent  holder,  plaintiff  would  be  without  remedy. 
Wherefore,  plaintiff  asks  that  a  writ  of  injunction  may  issue  restrain- 
ing said  Mary  D.  Gorton  and  said  Wm.  Gorton  from  transferring, 
selling,  or  in  any  manner  disposing  of,  said  check,  or  allowing  it  to  pass 
from  their  possession ;  and  that,  upon  the  final  hearing  of  this  cause, 
said  check  be  decreed  to  be  null,  void  and  cancelled ;  that  defendants 
be  ordered  to  surrender  the  same  for  cancellation;  that  said  injunction 
be  made  perpetual ;  that  plaintiff  recover  his  costs,  and  have  such  other 
and  further  relief  and  remedy  as  may  be  just  and  equitable." 

The  demurrer  was  upon  the  ground  that  the  facts  stated  in  the 
petition  do  not  entitle  the  plaintiff  to  the  relief  demanded.  Counsel 
for  appellants  contends  that  the  note  was  a  valid  contract,  because 
the  promise  of  William  Gorton  to  refrain  from  instituting  criminal 
proceedings  for  the  perjury  was  not  an  illegal  consideration.  It  is  fur- 
ther claimed  that  the  parties  to  the  transaction  were  in  pari  delicto, 
and  neither  is  entitled  to  the  aid  of  a  court  to  prevent  its  enforce- 
ment. Whatever  may  be  thought  of  the  above  propositions  of  law 
contended  for  by  counsel,  they  can  have  no  application  in  this  case, 
because  it  appears  from  the  averments  of  the  petition  that  the  plain- 


Ch.  8.)  CANCELLATION  OF  CONTRACTS.  103 

tiff  herein  was  not  guilty  of  the  perjury  of  which  he  was  accused.  This 
being  conceded  by  the  demurrer,  the  note  was  without  any  consider- 
ation whatever,  and  was  absokitely  void  as  between  the  parties  thereto. 
It  was  executed  to  avoid  a  criminal  prosecution  upon  a  charge  of 
which  the  maker  of  the  note  was  not  guilty.  And  the  bank  check 
given  in  exchange  for  the  note  was  a  mere  change  of  the  form  of  the 
void  obligation.  No  new  rights  accrued  by  the  exchange ;  and,  Mary 
Gorton  having  given  no  consideration  for  either  the  note  or  the  check, 
they  are  as  invalid  in  her  hands  as  they  would  have  been  if  made 
payable  to  William  Gorton.  We  think  the  demurrer  was  properly 
overruled.     Affirmed. 


GLASTONBURY  v.  ADM'R.  OF  McDONALD. 

(Supreme  Court  of  Vermont,  1872,  44  Vt.,  450.) 

Ross,  J.     The  orator  asks  that  the  order  for  $500,  given  by  Jere- 
miah   McDonald    and    John    W.    McDonald,    as    selectmen    of    the 
orator,  and  dated  May  25,  1861,  may  be  ordered  to  be  surrendered  and 
cancelled,  as  having  been  obtained  and  given  through  the  fraud  of 
Property   McDonald,   and  of   his   father  and  brother,  the   selectmen 
who  signed  the  order.     The  order  was  given  in  settlement  of  a  suit 
then  pending  against  the  town  in   favor  of   Property  McDonald,  to 
recover  for  injuries  alleged  to  have  been  received  by  him  through  the 
insufficiency  of  a  highway,  which  it  was  the  duty  of  the  town  to  main- 
tain and  keep  in  repair.    We  have  had  no  difficulty  in  finding,  from  the 
evidence,  that  the  order  was  obtained  and  given  in  fraud  of  the  rights 
of  the  orator ;  and  that  in  giving  the  order  Jeremiah  McDonald  and 
John  W.  McDonald  acted  in  accordance  with  a  pre-arranged  plan  for 
that  purpose,  and  not  honestly  in  their  capacity  of  selectmen.     Not- 
withstanding this,  the  defendant  insists  that  the  court   of   chancery 
should  not  interfere,  because   Property    McDonald   had,   before   the 
commencement  of  this  proceeding,  brought  a  suit  at  law  on  the  order, 
and  another  small  order  to  which  no  defense  is  claimed ;  and  because 
the  orator  could  avail  itself  of  fraud  as  a  defense  to  the  order  in  the 
suit  at  law.     In  support  of  the  claim  that  the  court  of  law  .should  be 
allowed  to  retain  jurisdiction  of  this  matter,  the  case,   I '.auk  of   P.i'l- 
lows  Falls  V.  Rutland  &  Burlington  K.  U.  Co.  ct  als.,  28  Vt.,  470,  is 


104  BILLS  QUIA  TIMET.  (Part  3 

much  relied  on  by  the  defendant.  The  general  doctrine  as  stated  in 
that  case  is  well  established,  that  a  court  of  equity  will  not  interfere  in 
cases  of  fraud  where  a  court  of  law  has  first  taken  jurisdiction,  and 
where  the  party  asking  the  intervention  of  the  court  of  chancery  can 
have  as  full  and  complete  remedy  against  the  fraud  in  the  court  of 
law.  The  court,  however,  recognize  the  right  of  the  court  of  chancery 
to  intervene  and  order  an  instrument  sought  to  be  enforced  in  a  court 
of  law,  which  has  been  procured  by  fraud,  delivered  up  and  cancelled, 
in  a  proper  case.  The  cases  are  not  entirely  harmonious  in  respect 
to  the  rule  which  should  govern  the  court  of  chancery  in  such  inter- 
vention. The  rule  laid  down  by  Chancellor  Kent  in  Hamilton  v. 
Cummings,  1  John.  Ch.,  517,  is  perhaps  the  most  complete  rule  on  the 
subject,  and  is  approved  of  by  the  learned  judge  who  pronounced 
the  opinion  of  the  court  in  the  case  in  28  Vt.,  Chancellor  Kent,  after 
reviewing  most  of  the  leading  cases  on  the  subject  up  to  that  time, 
says :  "Perhaps  the  cases  may  all  be  reconciled  on  the  general  prin- 
ciple, that  the  exercise  of  this  power  is  to  be  regulated  by  sound  dis- 
cretion as  the  circumstances  of  the  individual  case  may  dictate,  and  that 
the  resort  to  equity,  to  be  sustained,  must  be  expedient,  either  be- 
cause the  instrument  is  liable  to  abuse  from  its  negotiable  character, 
or  because  the  defense,  not  arising  upon  its  face,  may  be  difficult  or 
uncertain  at  law,  or  from  some  other  special  circumstances  peculiar  to 
the  case,  and  rendering  a  resort  to  chancery  proper  and  clear  of  all 
suspicion  of  any  design  to  promote  expense  and  litigation." 

The  defendant  has  raised  the  question  by  demurrer  to  the  bill.  He 
has  thus  allowed  the  testimony  to  be  taken  in  full,  on  both  sides,  and 
the  case  to  be  fairly  heard  on  its  merits,  before  the  question  of  juris- 
diction has  been  brought  to  the  attention  of  the  court.  So  far  as  the 
discretion  of  the  court  is  to  be  influenced  by  the  prolongation  of  liti- 
gation and  increase  of  expense,  the  circumstances  of  the  case  would 
favor  the  taking  of  jurisdiction  by  the  court,  rather  than  refusing  it. 
If  the  court  refuse  to  take  jurisdiction,  another  trial  of  the  question 
of  fraud  must  be  had,  with  the  increased  expense  necessarily  attending 
such  a  trial.  If  the  defendant  would  have  urged. increased  litigation 
and  expense  on  the  court  as  a  motive  for  not  assuming  jurisdiction, 
he  should  have  raised  the  question,  in  limine,  by  demurring  to  the  bill. 

The  order  is  negotiable  in  the  broadest  sense,  being  payable  to 
bearer,  and  is  drawn  upon  the  treasurer  of  the  town,  and  regular  upon 


Cll.    S.)  CLOUD  OX   TITLE.  105 

its  face.  Although  it  is  overdue,  the  orator  would  be  embarrassed  if 
it  should  be  negotiated.  The  orator  is  a  corporation,  and  can  act 
only  through  its  officers,  and  can  have  remedy  against  such  officers 
only  for  malfeasance  or  misfeasance  in  the  discharge  of  their  duties. 
If  the  treasurer  of  the  town — this  court  having  dismissed  the  bill  for 
want  of  jurisdiction,  and  without  finding  that  the  order  was  tainted 
with  fraud — should  assume  to  pay  the  order,  the  order,  in  a  suit  against 
the  treasurer,  would  be  burthened,  not  only  with  proving  the  other 
fraudulent,  but  also  with  showing  that  the  treasurer  acted  corruptly 
in  paying  the  same. 

We  think  the  circumstances  bring  the  case  within  the  rule  as  laid 
down  by  Chancellor  Kent.  If  the  evidence  left  the  fact  of  fraud  in 
doubt,  the  case  might  merit  a  different,  consideration.  The  pro  forma 
decree  dismissing  the  bill  is  reversed,  and  the  case  is  remanded  to 
the  court  of  chancery,  wath  a  mandate  to  enter  a  decree  for  the  orator, 
ordering  the  order  of  May  25.  1861,  for  $500,  surrendered  and  can- 
celled. This  order  will  not  affect  the  suit  at  law,  so  far  as  it  is  based 
upon  the  other  order.  From  the  consideration  that  the  suit  at  law  for 
the  alleged  injury  upon  the  highway  was  discontinued  by  the  giving  of 
the  order  for  $500,  we  have  thought  best  to  make  the  orator's  right  to 
the  above  order  conditional  upon  the  orator's  consenting  that  the 
discontinuance  may  be  stricken  off,  and  that  suit  be  brought  forward 
on  the  docket  for  trial  if  the  defendant  desires  it. 


SKCTION  II.  BILLS  TO  REMOVE  CLOUD  ON  TITLIC 


DAY  COMPANY  v.  THE  STATE. 

(Supreme  Court  of  Texas,  08  Tex.  .'5.20;  4  S.  W.  80.",.) 

Stayton,  AsSGCiATt:  JusTiCiJ.  This  action  was  brought  hy  the 
State  of  Texas  through  the  Attorney  General  and  the  district  attorney 
of  the  judicial  district  in  which  Greer  county  is  embraced.  The  pur- 
pose of  the  suit  is  to  establish  the  right  of  the  State  to  one  hundred 
and  forty-four  thousand  six  hundred  and  forty  acres  of  Iruid,  situated 


106  BILLS  QUIA  TIMET.  (Part  3 

in  Greer  county,  and  to  cancel  the  patents  under  which  the  appellant 
asserts  title  to  the  land.  The  land  was  located  and  patented  by  virtue 
of  land  certificates  issued  under  the  act  of  March  15,  1881,  (General 
Laws  35),  which  provided  for  the  issuance  of  land  certificates  in  favor 
of  the  surviving  soldiers  of  the  Texas  revolution  and  others.     .     .     . 

It  is  also  urged  that,  if  the  patents  are  void,  there  is  no  necessity 
for  relief ;  as  a  court  will  not  do  a  useless  thing,  therefore  it  will 
not  cancel  the  patents.  As  said  by  a  distinguished  author,  this  rule 
"leads  to  the  strange  scene,  almost  daily  witnessed  in  the  courts,  of 
defendants  urging  that  the  instruments  under  which  they  claim  are 
void,  and  therefore  that  they  ought  to  be  permitted  to  stand  unmolest- 
ed; and  of  judges  deciding  that  the  court  can  not  interfere,  because 
the  deed  or  other  instrument  is  void;  while,  from  a  business  point 
of  view,  every  intelligent  person  knows  that  the  instrument  is  a  serious 
injury  to  the  plaintiff's  title,  greatly  depreciating  its  market  value; 
and  the  judge  himself,  who  thus  repeats  the  rule,  would  neither  buy 
the  property  while  thus  affected  nor  loan  a  dollar  upon  its  security. 
This  doctrine  is,  in  truth,  based  upon  mere  verbal  logic,  rather  than 
upon  considerations  of  justice  or  expediency."  (3  Pomeroy's  Equity, 
1399.) 

The  rule  insisted  upon  proceeds,  not  upon  the  theory,  that  the  court 
has  not  power  to  remove  cloud  from  title  by  the  cancellation  of  an 
instrument  which  evidences  the  adverse  claim,  even  though  it  be  void, 
but  upon  the  theory  that  the  court  refuses  to  exercise  the  power  it  has, 
when  it  clearly  appears  that  its  exercise  can  accomplish  no  useful  pur- 
pose;  and  that,  by  its  refusal  to  act,  the  person  who  calls  upon  it  to 
exercise  its  power  will  suffer  no  injury  by  its  refusal  to  do  so.  If 
such  a  rule  as  is  insisted  upon  can  have  just  application  in  any  case,  it 
would  seem  to  be  only  in  a  case  in  which,  from  the  face  of  the  paper, 
which  is  the  basis  of  the  claim  asserted  to  be  a  cloud  upon  title,  no  man 
of  ordinary  intelligence  would,  in  acting  in  relation  to  the  subject 
matter  of  controversy,  be  influenced  by  the  claim  asserted  to  be  void, 
for  it  is  only  in  such  case  that  injury  would  not  result  from  even  a 

void  claim. 

The  rule  thus  limited  would,  however,  be  too  uncertain  to  furnish 
the  basis  for  judicial  action  in  granting  or  refusing  relief,  and  we  are 
of  the  opinion  that  the  better  rule  is  that,  notwithstanding  an  instru- 
ment may  be  void  upon  its  face,  a  court  has  power,  which  it  must 


Oh.    8.)  CLOUD  ON   TITLE.  107 

exercise,  not  only  to  declare  the  instrument  void,  but  to  cancel   it 
where  a  defendant  asserts  claim  under  it. 

A  defendant  who  asserts  claim  even  under  an  instrument  void  on  its 
face,  can  not  be  heard  to  say  that  it  has  not  such  semblance  of  validity 
as  to  create  a  cloud  upon  the  title  to  property  which  it  professes  to 
convey,  that  will  prejudice  the  right  of  the  real  owner  if  it  be  not  re- 
moved. He  can  not  be  heard  to  say  that  others  will  not  attach  to  it 
the  same  degree  of  faith  and  credit  as  a  title-bearing  instrument, 
which  he  in  good  faith  gives  to  it,  and  that,  to  the  extent  of  the  doubt 
or  cloud  thus  cast  upon  the  real  title,  its  holder  is  injured,  or  is  likely 
to  be  injured.     .     .     . 


LYTLE  V.  SANDEFUR. 

(Supreme  Court  of  Alabama,  1891,  93  Ala.,  396,  9  So.  260.) 

McClellan,  J.  .  .  .  The  purpose  of  the  bill  is  to  correct  the 
mistake  of  description  in  the  several  deeds,  to  remove  the  cloud  there- 
by cast  upon  complainants'  title,  and  to  enjoin  the  action  at  law.     .     ,     , 

For  the  purpose  of  relief  by  way  of  removing  a  cloud  from  the 
title  of  the  complainants  the  bill  is  wholly  lacking  in  equity.  What 
we  have  already  said  will  suffice  to  indicate  the  grounds  of  our 
opinion  that  Mrs.  Sandefur  has  no  title,  legal  or  equitable,  in  the  land, 
but  only  a  right  of  action  in  respect  to  it.  It  is  not  conceivable,  in  the 
nature  of  things,  that  any  state  of  facts  in  regard  to  the  title,  any 
character  of  muniments  evidencing  prima  facie  title  to  the  others,  could 
be  said  in  any  sense  to  shade  and  obscure  that  which  has  no  existence. 
The  title  of  the  other  complainants,  which,  according  to  the  theory 
of  the  bill,  is  clouded  by  reason  of  the  fact  that  the  land  in  question 
was  inadvertently  embraced  in  the  deeds  of  the  Slosses,  Mrs.  Sandefur, 
and  Dansby,  respectively,  came  to  them  by  descent  from  (licir  father, 
James  L.  vSandefur.  It  is  alleged  that  he  was  seized  in  fee  of  the  land 
at  the  time  of  his  death.  All  of  the  deeds  which  are  now  sought  to  be 
canceled  on  the  ground  that  they  constitute  a  cloud  on  this  title  were 
executed  subsequent  to  his  death.  There  is  no  pretense  that  any  i)er- 
son  who  succeeded  in  any  way  to  the  title  of  James  L.  is  a  parly  to 
any  one  of  these  deeds  or  nominally  bound  by  them.    There  is  no  pre- 


108  BILLS  QUIA  TIMET.  (Part  .*5 

tense  that  any  party  to  any  of  these  deeds  had  or  has  any  title  or 
color  of  title  as  against  the  title  of  said  heirs.  On  this  state  of 
averment,  these  apparent  muniments  do  not  constitute  a  cloud  on  the 
title  of  the  heirs.  The  test,  as  laid  down  by  this  court,  is  this,  as 
applied  to  the  present  case :  Would  these  heirs,  in  an  action  of 
ejectment,  founded  upon  either  of  said  deeds,  be  required  to  ofit'er 
evidence  to  defeat  a  recovery?  If  the  proof  would  be  unnecessary,  no 
shade  would  be  cast  on  their  title  by  the  presence  of  the  deed.  If  the 
action  would  fall  by  its  own  weight,  without  proof  in  rebuttal,  no 
occasion  could  exist  for  equitable  interposition.  Rea.  v.  Longstreet, 
54  Ala.  294.  It  is  said  in  this  case:  "A  court  of  equity  will  not 
interpose  to  prevent  or  remove  a  cloud  which  can  only  be  shown  to  be 
prima  facie  a  good  title  by  leaving  the  complainant's  title  entirely  out 
of  view.  It  is  always  assumed,  when  the  court  interposes,  that  the 
title  of  the  party  complaining  is  affected  by  a  hostile  title  apparently 
good,  but  really  defective."  In  an  action  based  on  the  title  supposed 
to  be  conferred  by  the  deeds  which  are  alleged  to  be  a  cloud  on  the 
title  of  the  heirs,  against  them,  the  plaintiff's  case  would  fall  of  its 
own  weight  because  of  a  failure  of  his  proof  to  draw  to  himself  the 
prior  and  superior  title,  which  was  vested  in  James  L.  Sandefur  in 
life,  and  passed  eo  instante  into  the  defendants  at  his  death.  The 
title,  in  other  words,  is  not  even  apparently  good  against  the  heirs, 
would  not  be  admissable  in  defense  to  ejectment  by  them,  and  would  fall 
short  of  establishing  a  prima  facie  valid  claim  of  the  title  in  ejectment 
against  them,  even  if  their  own  title  were  not  adduced  in  evidence 
at  all.  The  authorities  concur  to  the  point  that  such  nominal  muni- 
ments can  in  no  sense  be  said  to  constitute  a  cloud  to  the  removal  of 
which  equity  jurisdiction  may  be  invoked.     ... 


FROST  V.  SPITLEY. 

(Supreme  Court  of  the  United  States,   1886,  121  U.  S.  552.) 

This  case,  so  far  as  is  material  to  the  understanding  of  the  appeal 
was  a  bill  in  equity  by  Martin  Spitley,  a  citizen  of  Illinois,  against 
George  W.  Frost  and  wife,  citizens  of  Nebraska,  Thomas  C.  Durant, 
a  citizen  of  New  York,  and  The  Credit  Mobilier  of  America,  a  cor- 


Cll.    8.)  CLOUD  ON   TITLE.  109 

poration  of  Pennsylvania,  alleging  that  the  plaintiff  was  entitled  to 
two  lots  of  land  in  the  city  of  Omaha,  count}'  of  Douglas,  and  State 
of  Nebraska,  under  a  sale  on  execution  against  Frost  to  one  John  I. 
Redick,  and  a  conveyance  from  Redick  to  the  plaintiff,  and  praying 
for  a  decree  quieting  the  plaintiff's  title  and  ordering  a  conveyance 
to  him  of  the  legal  estate. 

Mr.  Justice  Gray.  ...  At  the  time  of  the  sale  on  execution 
of  Frost's  interest  in  the  land,  the  legal  title  was,  and  it  still  remains, 
in  Durant.  Although  Frost,  under  his  agreement  with  Durant  and 
the  corporation,  and  the  decree  w^hich  he  had  recovered  against  them, 
had  been  entitled  to  a  deed  of  the  land  upon  the  payment  of  a  certain 
sum  of  money,  he  had  not  paid  the  money,  nor  had  any  deed  been 
delivered  to  him ;  so  that  his  title,  either  by  virtue  of  the  agreement 
and  decree,  or  by  virtue  of  his  occupation  of  the  land  as  a  homestead, 
never  was  anything  more  than  an  equitable  title.  The  sale  on  execution 
aeainst  him  (if  valid  and  effectual)  and  the  deed  of  the  marshal 
passed  only  his  equitable  title  to  Redick ;  Redick's  payment  to  Durant 
of  the  money  unpaid  by  Frost  did  not  divest  Durant  of  his  legal  title ; 
and  Redick's  subsequent  conveyance  to  Spitley  could  pass  no  greater 
right  than  Redick  had.  Spitley's  title,  therefore,  at  best,  is  but  equi- 
table, and  not  legal,  and  Frost,  and  not  Spitley,  is  in  actual  possession 

of  the  land. 

Under  the  jurisdiction  and  practice  in  equity,  independently  of 
statute,  the  object  of  a  bill  to  remove  a  cloud  upon  title,  and  to  quiet 
the  possession  of  real  estate,  is  to  protect  the  owner  of  the  legal 
title  from  being  disturbed  in  his  possession,  or  harassed  by  suits  in  re- 
gard to  that  title;  and  the  bill  cannot  be  maintained  without  clear 
proof  of  both  possession  and  legal  title  in  the  plaintiff.  Alexander  v. 
Pendleton,  8  Cranch,  462;  Piersoll  v.  Elliott,  6  Pet.  95;  Orton  v. 
Smith,  18  How.  263;  Crews  v.  Burcham,  1  Black,  352;  Ward  v. 
Chamberlain,  2  Black,  430.  As  observed  by  Mr.  Justice  Grier  in 
Orton  v.  Smith,  "Those  only  who  have  a  clear  legal  and  equitable  title 
to  land,  connected  with  possession,  have  any  right  to  claim  the  inter- 
ference of  a  court  of  equity  to  give  them  peace  or  dissipate  a  cloud  on 
the  title."  18  How.  265.  A  person  out  of  possession  cannot  maintain 
such  a  bill,  whether  his  title  is  legal  or  equitable ;  for  if  his  title  is  legal, 
his  remedy  at  law,  by  action  of  ejectment,  is  plain,  adequate  and  com- 
plete;  and  if  his  title  is  equitable,  he  must  acquire  the  legal  litlr,  and 


110  BILLS  QUIA    TIMET.  (Part    .*5 

then  bring  ejectment.    United  States  v.  Wilson,  118  U.  S.  86;  Fussell 
V.  Gregg,  113  U.  S.  550. 

It  is  possible  that  one  who  holds  land  under  grant  from  the  United 
States,  who  has  done  everything  in  his  power  to  entitle  him  to  a  patent, 
(which  he  cannot  compel  the  United  States  to  issue  to  him,)  and 
is  deemed  the  legal  owner,  so  far  as  to  render  the  land  taxable  to 
him  by  the  state  in  which  it  lies,  may  be  considered  as  having  sufficient 
title  to  sustain  a  bill  in  equity  to  quiet  his  right  and  possession.  Car- 
roll V.  Safford,  3  How.  441,  463;  Van  Wyck  v.  Knevals,  106  U.  S. 
360,  370;  Van  Brocklin  v.  Tennessee,  117  U.  S.  151,  169.  But  no  such 
case  is  presented  by  the  record  before  us.     .     .     . 

A  statute  of  Nebraska  authorizes  an  action  to  be  brought  "by  any 
person  or  persons,  whether  in  actual  possession  or  not,  claiming  title 
to  real  estate,  against  any  person  or  persons  who  claim  an  adverse 
estate  or  interest  therein,  for  the  purpose  of  determining  such  estate 
or  interest,  and  quieting  the  title  to  said  real  estate."  Nebraska  Stat. 
February  24,  1873,  Rev.  Stat.  1873,  p.  882.  By  reason  of  that  statute, 
a  bill  in  equity  to  quiet  title  may  be  maintained  in  the  Circuit  Court 
of  the  United  States  for  the  District  of  Nebraska  by  a  person  not  in 
possession,  if  the  controversy  is  one  in  which  a  court  of  equity  alone 
can  afford  the  rehef  prayed  for.  Holland  v.  Challen,  110  U.  S.  15,  25. 
The  requisite  of  the  plaintiff's  possession  is  thus  dispensed  with,  but 
not  the  other  rules  which  govern  the  jurisdiction  of  courts  of  equity 
over  such  bill.  Under  that  statute,  as  under  the  general  jurisdiction 
in  equity,  it  is  "the  title,"  that  is  to  say,  the  legal  title  to  real  estate 
that  is  to  be  quieted  against  claims  of  adverse  estates  or  interests. 
In  State  v.  Sioux  City  &  Pacific  Railroad,  the  Supreme  Court  of  Ne- 
braska said,  "Whatever  the  rule  may  be  as  to  a  party  in  actual  posses- 
sion, it  is  clear  that  a  party  not  in  possession  must  possess  the  legal 
title,  in  order  to  maintain  the  action."  7  Nebraska,  357,  Z7^.  And  in 
Holland  v.  Challen,  above  cited,  this  court  said,  "Undoubtedly,  as  a 
foundation  for  the  relief  sought,  the  plaintiff  must  show  that  he  has  a 
legal  title  to  the  premises." 

The  necessary  conclusion  is,  that  Spitley,  not  having  the  legal  title 
of  the  lots  in  question,  cannot  maintain  his  bill  for  the  purpose  of 
removing  a  cloud  on  the  title ;  he  cannot  maintain  it  for  the  purpose  of 
compelling  a  conveyance  of  the  legal  title,  because  Durant,  in  whom 
that  title  is  vested,  though  named  as  a  defendant,  has  not  been  served 


Ch.    8.)  CLOUD  ON  TITLE.  Ill 

with  process  or  appeared  in  the  cause ;  and  for  Hke  reasons  Frost  and 
wife  cannot  maintain  their  cross  bill. 


STEUART  V.  MEYER. 

(Court  of  Appeals  of  Maryland,  1880,  54  Md.  454.) 

AivVERY,  J.  The  plaintiffs  in  this  cause  filed  their  bill  to  have  set 
aside  and  declared  void  a  certain  tax  sale  of  a  lot  of  ground  and  im- 
provements thereon,  in  the  City  of  Baltimore,  as  having  been  illegally 
made,  for  State  and  city  taxes  assessed  for  the  years  1871  and  1874; 
and  which  sale,  and  the  proceedings  that  have  taken  place  thereon, 
have  created,  as  it  is  alleged,  a  cloud  upon  the  title  to  the  property, 
which  the  plaintiffs  seek  to  have  removed.     .     .     . 

If  the  sale  is  so  fatally  defective  as  to  be  insufficient  to  vest  a  good 
title  to  the  property  in  the  purchaser,  every  reason  would  seem  to 
require  that  the  plaintiffs  should  have  ample  and  speedy  remedy  to  be 
relieved  of  the  obstacle  created  by  the  collector's  proceedings  to  the 
full  enjoyment  of  their  rights,  and  that  the  cloud  upon  the  title  to  the 
property  should  at  once  be  removed.     They  are  interested  only  in 
the  annual  ground  rents,  and  in  the  estate  of  the  reversion;  they  are 
not  entitled  to  the  possession,  and  could  not,  therefore,  sue  in  eject- 
ment for  the  recovery  of  the  property.     Under  the  circumstances  of 
this  case,  without  resort  to  a  proceeding  like  the  present,  the  parties 
would  be  without  adequate  remedy  for  relief  against  the  effect  of  the 
prima  facie  title  in  the  purchaser.     In  such  cases,  equity  asserts  com- 
plete jurisdiction  to  remove  the  cloud  from  the  title  of  the  property 
involved,  and  to  prevent  unnecessary  and  vexatious  litigation.     Hol- 
land V.  City  of  Baltimore,  11  Md.,  186,  197;  Polk  v.  Rose,  25  Md. 
153,  161,  162;  Carroll  v.  Safford,  3  How.,  (U.  S.,)  441,  463;  Thomas 
V.  Gain,  35  Mich.,  155;  2  Sto.  Eq.  Juris.,  sees.  694,  700. 

But,  as  a  condition  upon  which  this  equitable  jurisdiclion  should 
be  exercised,  for  the  relief  of  the  plaintiffs,  they  should  be  re(iuircd 
to  pay,  or  bring  into  Court  to  be  paid,  to  the  party  entitled  to  receive 
it,  the  full  amount  of  the  taxes  in  arrear  at  the  time  of  the  sale  by  the 
collector  together  with  the  interest  accrued  thereon  to  the  time  of 
payment  and  also  all  taxes  that  have  subsequently  accrued  due  on  the 


112  BILLS  QUIA  TIMET.  (Part  3 

property,  with  interest;  and  upon  the  full  payment  of  such  sums,  the 
plaintiffs  should  then  have  the  relief  prayed  by  them.  This  require- 
ment in  regard  to  the  payment  of  taxes  is  substantially  in  accordance 
with  what  would  have  been  required  if  the  sale,  as  reported  to  the 
Circuit  Court  of  the  City,  had  been  excepted  to,  and  had  been  set 
aside,  and  a  re-sale  made  by  the  collector.  Act  of  1874,  ch.  483,  sec. 
51.  And  we  think  it  but  right  that  the  relief  sought  in  this  proceeding 
should  be  granted  only  on  substantially  the  same  terms  as  those  pre- 
scribed by  the  statute,  where  the  sale  is  set  aside  by  the  Court  to  which 
it  is  reported.  When,  therefore,  the  plaintiffs  pay,  or  bring  into  Court 
to  be  paid,  the  sums  due  for  taxes,  they  will  be  entitled  to  a  decree, 
declaring  the  sale  and  the  order  of  confirmation  thereof,  to  be  null 
and  of  no  effect,  and  that  the  deed  of  the  collector  be  cancelled ;  and 
they  will  also  be  entitled  to  an  account  of  the  ground  rents  as  prayed 
by  them.  And  to  the  end  that  such  relief  may  be  afforded,  we  shall 
reverse  the  decree  appealed  from  and  remand  the  cause. 
Decree  reversed  and  cause  remanded. 


GARRISON  V.  FRAZIER. 

(Supreme  Court  of  Missouri,  1901,  165  Mo.  40;  65  S.  W.  229.) 

Robinson,  J.  The  question  involved  on  this  appeal  is  the  sufficiency 
of  the  petition  filed,  a  dem^urrer  to  which  was  sustained  by  the  court 
below. 

The  children  of  John  B.  Garrison,  deceased,  by  a  second  marriage, 
and  their  mother,  Martha  Garrison,  instituted  this  suit  in  the  Christian 
Circuit  Court  against  the  defendants,  children  of  John  B.  Garrison  by 
a  former  marriage,  to  quiet  title.     .     .     . 

The  question  for  determination  is :  Is  the  Act  of  1897,  now  section 
650,  Revised  Statutes  1899,  broad  enough  td  authorize  the  court  to 
determine  advancements  between  remaindermen  before  the  termina- 
tion of  the  widow's  Hfe  estate;  or  broadly  stated,  does  the  statute 
apply  to  parties  claiming  a  remainder  prior  to  the  expiration  of  the 
intervening  life  estate  ? 

Under  this  section,  plaintiffs  contend  that  this  proceeding  can  be 
maintained  by  the  children  of  the  second  marriage  against  their  half- 


Cll.    8.)  CLOUD  ox   TITLE.  ll^i 

brother  and  sisters  by  their  father's  first  marriage,  and  this,  too, 
during  the  intervening  Hfe  estate  of  their  mother,  and  that  the  court 
is  authorized  to  inquire  into  advancements  made  to  the  defendants 
during  the  Hfetime  of  the  common  ancestor,  John  B.  Garrison.  The 
defendants,  on  the  other  hand,  urge  that  such  advancements  can  not 
be  settled  in  this  kind  of  a  proceeding,  especially  before  the  termina- 
tion of  the  life  estate. 

Under  the  law  as  it  stood  prior  to  the  present  statute  enacted  in 
1897,  the  plaintiffs  would  undoubtedly  have  been  denied  any  standing 
in  court.  (Northcutt  v.  Eager,  132  Mo.  265;  Webb  v.  Donaldson,  60 
Mo.  394.)  Upon  the  authority  of  these  cases  the  petition  would  have 
been  fatally  defective.  It  is  apparent  that  the  Legislature,  in  view 
of  such  interpretation,  deemed  it  advisable  to  enlarge  the  jurisdiction 
of  the  courts  so  as  to  furnish  relief  in  a  large  class  of  cases  which 
were  not  comprehended  in  the  former  statutes,  and  thereupon  passed 
the  statute  under  which  the  present  suit  was  instituted,  which  pro- 
vides that,  "Any  person  claiming  any  title,  estate  or  interest  in  real 
property,  whether  the  same  be  legal  or  equitable,  certain  or  contingent, 
present  or  in  reversion  or  remainder,  whether  in  possession  or  not, 
may  institute  an  action  against  any  person,  having  or  claiming  to  have 
any  title,  estate  or  interest  in  such  property,  whether  in  possession 
or  not,  to  ascertain  and  determine  the  estate,  title  and  interest  of  said 
parties,  respectively,  in  such  real  estate,  and  to  define  and  adjudge  by 
its  judgment  or  decree  the  title,  estate  and  interest  of  the  parties  sev- 
erally in  and  to  such  real  estate." 

The  manifest  object  of  this  section  was  to  extend  the  operation  of 
the  statute  over  just  such  cases  as  this,  and  the  mere  fact  that  the 
plaintiffs  and  defendants  are  only  claiming  a  remainder  after  the  life 
estate  of  the  widow,  does  not  militate  against  the  right  to  maintain  the 

present  suit.  ^  "^      W^^ 

In  the  recent  case  of  HufT  v.  Land  &  Imp.  Co.,  157  Mo.  65,  this 
court,  in  an  opinion  by  Vat.uant,  J.,  construing  this  statute,  said: 
"The' object  of  the  statute  is  to  allow  a  person  who  claims  any  estate 
to  the  land,  either  in  possession  or  expectancy,  without  waiting  to 
have  his  rights  trespassed  upon,  to  call  anyone  who  claims  an  ad- 
verse interest  into  court  to  declare  his  claim,  to  the  end  that  the  court 
may  then  settle  the  title  as  between  them."  And  so  we  think  it  can 
be  said  in  this  case,  that  under  the  broad  and  sweeping  provisions  of 
the  present  statute  any  person  claiming  an  estate  in  reversion  or  rc- 


3 


Eq— 8 


114  BILLS  QUIA   TIMET.  (Part   3 

mainder  may  maintain  a  suit  to  quiet  title  against  anyone  having  or 
claiming  to  have  any  adverse  interest  in  the  property,  whether  in 
reversion  or  remainder,  and  obtain  an  adjudication  forever  settling  the 
title  and  interest  of  the  parties  respectively.     .     .     . 


McREE  V.  GARDNER. 

(Supreme  Court  of  Missouri,  1895,  131  Mo.  599,  33  S.  W.  166.) 

Macfarlane,  J.  This  is  a  suit  in  equity  to  remove  a  cloud  from 
plaintiff's  title  to  one  and  a  half  acres  of  land  situate  in  the  city  of 
St.  Louis.  The  petition  states  that  plaintiff  is  the  owner  in  fee  and 
is  in  the  lawful  possession  of  the  land  described.  The  title  under 
which  plaintiff  claims  is  stated  to  be  one  acquired  by  adverse  pos- 
session.    .     .     . 

We  are  of  the  opinion  that  the  decided  weight  of  the  evidence  sup- 
ports the  position  of  defendant  that,  when  the  suit  was  commenced, 
he  was,  and  for  nearly  a  year  had  been,  in  the  exclusive  actual  posses- 
sion of  the  property.  The  testimony  of  plaintiff  himself  sufficiently 
establishes  this  fact.  The  mere  act  of  turning  a  cow  into  the  premises 
before  commencing  the  suit  and  removing  bill  boards  therefrom  did 
not  give  the  necessary  possession.  At  most  these  were  but  acts  of 
trespass.     Dyer  v.  Baumeister,  87  Mo.  137. 

It  is  well  settled  in  this  state  that  when  real  estate  is  held  adversely 
the  statute  of  limitations  operates  upon  the  title,  and  when  the  bar 
is  complete  the  title  of  the  original  owner  is  transferred  to  the  ad- 
verse possessor.  The  title  thus  acquired  is  a  legal  title  which  can 
be  protected  by  actions  at  law,  where  like  actions  would  lie  under 
a  title  by  deed.  Sherwood  v.  Baker,  105  Mo.  477;  Harper  v.  Morse, 
114  Mo.  323;  Allen  v.  Mansfield,  82  Mo.  693. 

Plaintiff  avers  in  his  petition  no  title  except  that  derived  through 
adverse  possession.  That  title,  if  all  other  necessary  conditions  exist, 
is  sufficient  to  authorize  a  suit  in  equity  to  remove  a  cloud  from  his 
title.  This  is  expressly  decided  in  Gardner  v.  Terry,  99  Mo.  524. 
But  it  is  equally  well  settled  in  this  state  that  a  party  claiming  the 
legal  title  and  being  out  of  possession  can  not  invoke  equitable  juris- 
diction to  remove  a  cloud  from  such  title.  Davis  v.  Sloan,  95  Mo. 
553 ;  Graves  v.  Ewart,  99  Mo.  18. 


Ch.    8.)  CLOUD  ox   TITLE.  115 

It  appearing,  then,  that  plaintiflf  was  not   in   possession   when   he 
commenced  his  suit  he  can  not  maintain  the  action.     .     .     . 


KING  V.  TOWNSHEND. 

(New  York  Court  of  Appeals,  1894,  141  N.  Y.  358,  36  N.  E.  513.) 

Finch,  J.  The  rehef  sought  in  this  action  is  the  cancellation  of 
a  lease  executed  and  delivered  by  the  comptroller  of  the  city  of  New 
York  upon  a  sale  for  unpaid  taxes.  It  is  admitted  by  the  defendant, 
who  is  the  assignee  of  the  lease,  that  it  is  void  because  the  sale  in- 
cluded an  illegal  charge  for  interest.  It  would  seem  that  such  an  ad- 
mission should  at  once  end  the  controversy  and  the  lease  be  promptly 
cancelled,  but  some  ulterior  purpose  appears  to  lie  behind  the  ap- 
parent litigation,  and  serves  to  prolong  it.  For,  notwithstanding  the 
defendant's  concession,  he  resists  the  relief  sought  upon  the  double 
ground  that  there  is  no  cloud  on  the  one  hand  and  no  title  to  be 
clouded  on  the  other. 

The  claim  that  the  lease  constitutes  no  cloud  is  founded  upon  the 
provisions  of  the  statute  which  make  the  lease  inchoate;  ineffective 
to  produce  a  right  of  possession  or  establish  a  title;  until  a  specified 
notice  to  redeem  has  been  given  to  occupant  or  owner,  and  a  certificate 
of  which,  signed  by  the  comptroller,  must  accompany  the  record  of 
the  lease.  (Laws  of  1871,  ch.  381,  sees.  13,  14,  15  and  16.)  It  is  un- 
doubtedly true  that,  until  that  certificate  is  given,  the  right  of  the 
lessee  is  imperfect  and  no  title  passes  by  the  conveyance.  (Lockwood 
V.  Gehlert,  127  N.  Y.  241.)  But  if  we  concede  that  the  imperfect  and 
inoperative  lease  does  not  constitute  an  actual  cloud  it  is  nevertheless 
a  decisive  step  towards  the  creation  of  a  cloud  and  a  threat  and  men- 
ace to  create  one  in  the  future.  Equity  may  interfere  to  prevent  a 
threatened  cloud  as  well  as  to  remove  an  existing  one.  (v^andcrs  v. 
Yonkers,  63  N.  Y.  492.)  It  is  true  that,  in  such  a  case,  there  must 
appear  to  be  a  determination  to  create  a  cloud,  and  the  danger  must 
be  more  than  merely  speculative  or  potential.  That  was  said  of  tax 
proceedings  in  which  no  lease  had  been  given  and  there  was  no  proof 
that  the  purchaser  claimed  or  the  city  threatened  it. 

Here  it  has  been  given.     Its  very  existence  is  a  threat.     It  was  not 
given  for  amusement  or  as  an  idle  ceremony.    It  meant  and  could  only 


116  BILL6  QUIA    TIMET.  (Part    8 

mean  a  purpose  to  subvert  tlie  title  and  possession  of  the  owner.  The 
further  steps  necessary  to  make  the  result  effective  lay  wholly  in 
the  option  of  the  lessee.  If  he  actually  served  the  necessary  notice 
and  filed  the  prescribed  affidavit  and  satisfied  the  comptroller  of 
those  facts  the  certificate  followed  as  a  matter  of  course  if  not  barred 
by  a  redemption.  The  lessee,  therefore,  in  the  present  case  stands 
with  an  effective  weapon  in  his  hands  and  may  strike  his  blow  when 
he  pleases.  It  is  in  that  respect  that  the  situation  differs  from  that 
in  Clark  v.  Davenport  (95  N.  Y.  478).  There  the  state  comptroller 
had  not  given  a  deed  and  was  not  bound  to  give  it.  He  might  instead 
cancel  the  sale  and  could  be  compelled  to  do  so.  Here  the  city  comp- 
troller has  given  the  lease  and  has  no  discretion  left.  If  the  grantee 
gives  the  notice  and  proves  it,  the  comptroller  must  make  the  certifi- 
cate. Nor  is  it  an  answer  to  say  that  for  many  years  the  lessee  has 
omitted  to  give  the  notice.  That  only  intensifies  the  injury  and  the 
danger.  In  Hodges  v.  Griggs  (21  Verm.  280)  a  creditor's  execution 
against  land  following  an  attachment  had  been  allowed  to  sleep  for 
seven  or  eight  years,  and  equity  required  him  to  enforce  his  right  or 
remove  the  threatened  cloud.  And  so  the  defendant  here  has  no  right 
to  maintain  a  threat  of  title  as  lessee,  when  he  confesses  that  it  is 
found  on  no  legal  right.  The  lease  is  something  more  than  a  cer- 
tificate of  sale.  It  is  in  form  and  terms  a  conveyance,  effective  at  the 
option  of  the  lessee  if  there  be  no  redemption.  The  statute  provides 
that  "all  such  leases  executed  by  the  said  comptroller  and  witnessed 
by  the  clerk  of  arrears,  shall  be  presumptive  evidence  that  the  sale 
and  all  proceedings  prior  thereto,  from  and  including  the  assessments 
on  said  lands  and  tenements  for  taxes  or  assessments,  or  Croton  water 
rents,  and  all  notices  required  by  law  to  be  given  previous  to  the  ex- 
piration of  the  two  years  allowed  to  redeem,  were  regular  and  ac- 
cording to  the  provisions  of  the  statute."  Such  a  lease,  armed  with 
such  presumptions,  effective  at  the  option  of  the  lessee,  unless  there 
is  a  redemption  for  his  benefit  drawing  forty-two  per  cent  of  interest, 
and  sufficient  to  prevent  any  sale  of  the  property  and  cloud  the  owner's 
right,  cannot  be  said  to  be  a  mere  speculative  danger. 

Nor  is  it  true  that  the  invalidity  of  the  lease  appears  upon  its  face. 

It  shows  no  details  of  the  amounts  for  which  the  sale  was  made,  and 

the  presumptions  attending  it  make  proof  of  such  details  unessential 

to  the  right  of  the  lessee.     It  is  only  by  evidence  outside  of  the  lease 

itself  that  its  invalidity  can  be  made  to  appear. 


Ch.    8.)  CLOUD  ON   TITLE.  117 

I  think,  therefore,  that  enough  was  shown  to  justify  the  interven- 
tion of  equity  to  cancel  the  lease  even  if  considered  only  as  a  threat 
to  create  a  cloud,  and  if  the  action  be  regarded  as  one  not  to  remove 
but  to  prevent  a  cloud.     .     .     . 


ASHURST  V.  McKENZIE. 

(Supreme  Court  of  Alabama,   1891,  92  Ala.  484.  9  So.  262.) 

McClellan^  J.  There  are  suggestions  in  the  present  bill  looking  to 
relief  by  way  of  quieting  and  removing  a  cloud  from  complainant's 
title  to  the  land  in  controversy;  but  neither  the  averments  nor  proof 
are  sufficient  to  authorize  such  relief.     .     .     . 

As  to  removing  a  cloud  from  complainants'  title,  the  suggestion  is 
equally  lacking  in  averment  and  proof.  There  is  no  allegation  or 
evidence  of  any  muniment  of  title,  proceeding,  written  contract,  or 
paper  showing  any  color  of  title  in  the  defendant;  which  could  cast 
a  shadow  on  the  title  of  complainants  to  any  part  of  the  land.  There 
is  no  overlapping  of  description  in  the  muniments  held  by  either. 
The  lands  of  complainants  and  defendant  join.  The  line  which  sep- 
arates them  is  in  dispute,  and  is  to  be  determined  by  evidence  aliunde. 
Each  admits  that  the  other  has  title  up  to  his  line,  wherever  it  may  be, 
and  the  title  papers  of  neither  fix  its  precise  location;  so  that  there 
is  no  paper  the  existence  oJ  which  clouds  the  title  of  either  party, 
and  nothing  could  be  delivered  up  and  cancelled  under  the  decree  of 
the  court  undertaking  to  remove  a  cloud.     .     .     . 


SANXAY  V.  HUNGER. 

(Supreme  Court  of  Indiana,  1873,  42  Ind.  44.) 

OsBORN,  C.  J.  The  appellee  instituted  an  action  against  the  appel- 
lant to  establish  and  perpetuate  an  easement  in  adjoining  lands,  .ind 
to  enjoin  him  from  disturbing  the  appellee  in  the  enjoyment  of  such 
easement.     .     .     . 


118  BILLS  QUIA  TIMET.  (Part  3 

The  appellant  was  the  owner  of  the  land  over  which  the  right  of 
way  or  easement  was  alleged  to  exist.  In  other  words,  the  appellee 
was  the  owner  of  the  dominant,  and  the  appellant  was  the  owner  of 
the  servient  estate.  If  the  appellant  disputed  the  appellee's  right,  and 
was  about  to  deprive  him  of  it,  we  think  he  had  a  right  to  have  it 
established,  and  to  enjoin  the  appellant  from  disturbing  him  in  its 
enjoyment. 

The  appellee  claimed  that  he  had  such  an  interest  in  the  real  estate 
occupied  by  the  right  of  way  as  gave  to  him  an  action  under  sec.  611, 
2  G.  &  H.  284,  to  quiet  his  title  when  disputed ;  that  it  was  appurtenant 
to  his  farm,  an  incorporeal  hereditament.  We  do  not  consider  it  neces- 
sary to  base  it  upon  that  section.  If  we  did,  perhaps  we  should  hold 
that  he  would  be  within  its  spirit. 

When  the  claim  set  up  by  one  to  an  interest  in  land  appears  to  be 
valid  on  the  face  of  the  record,  and  the  defect  can  only  be  made  to 
appear  by  extrinsic  evidence,  particularly  if  that  evidence  depends 
upon  oral  testimony,  it  presents  a  case  invoking  the  aid  of  a  court  of 
equity  to  remove  it  as  a  cloud  upon  the  title.  Crooke  v.  Andrews, 
40  N.  Y.  547;  1  Story  Eq.,  sec.  711.  So  a  bill  for  an  injunction  will 
lie  when  easements  or  servitudes  are  annexed  by  grant  or  otherwise 
to  private  estates.  2  Story  Eq.,  sec.  927.  In  this  case  the  fee  of  the 
land  was  admitted  to  be  in  the  appellant,  subject  to  the  easement 
claimed.  There  was  no  record  evidence  of  the  right  claimed  by  the 
appellee.  The  appellant  denied  the  existence  of  any  way  or  easement, 
and  was  threatening  to  interrupt  the  appellee  in  the  use  and  enjoy- 
ment of  it. 

He  had  placed  upon  record  a  notice  that  he  disputed  and  would 
dispute  such  right.  It  was  important  to  the  appellee  to  have  his 
right  ascertained  and  established,  whilst  the  persons  who  were  ac- 
quainted with  the  facts  were  alive.  They  would  soon  die,  but  the 
record  of  his  notice  would  be  perpetual.  And  the  record  of  such  a 
notice  would  be  a  perpetual  menace  to  him  and  a  cloud  upon  his  title 
and  right  of  way  to  his  farm.  It  needs  no  argument  to  show  that  it 
would  injure  the  value  of  the  farm.  Without  a  way  to  it,  the  land 
was  comparatively  valueless.  No  prudent  man  would  give  as  much 
for  it,  with  the  way  and  access  to  it  disputed  and  clouded  with  the 
record  of  that  notice,  as  he  would  if  it  was  undisputed  or  established 
by  the  judgment  of  a  court.     In  the  face  of  such  a  record,  the  fact 


Ch.    8.)  CLOUD  ox   TITLE.  119 

that  it  had  been  used  for  twenty  years  would  not  quiet  the  appre- 
hensions of  the  buyer,  when  the  evidence  of  it  rested  entirely  in  the 
memory  of  witnesses,  some  of  whom  were  more  than  eighty  years 
old.  One  who  would  buy  and  pay  a  full  price  for  a  farm  under  such 
circumstances  would  manifest  an  amazing  confidence  in  the  recollec- 
tion and  testimony  of  witnesses,  verdicts  of  juries,  and  judgments  of 
courts.    The  demurrer  was  correctly  overruled.     .     .     . 


STATE  EX  REL.  DOUGLAS  v.  WESTFALL. 

(Supreme  Court  of  Minnesota,  1902,  85  Minn.  438,  89  N.  W.  175.) 

Start,  C.  J.  .  .  .  The  sole  issue  of  law  raised  by  the  demurrer 
is  this:  Is  Laws  1901,  c.  237,  by  virtue  of  which  the  respondent  was 
appointed  such  examiner,  providing  for  the  Torrens  system  of  regis- 
tering land  titles,  constitutional?     .     .     . 

Actions  and  proceedings  to  conclusively  establish  rights  and  titles 
against  all  claimants  and  parties,  known  and  unknown,  are  not  novel- 
ties in  our  jurisprudence,  for  decrees  probating  wills,  distributing  es- 
tates of  deceased  persons,  quieting  title  to  real  estate  against  unknown 
heirs  and  unknown  parties,  have  been  repeatedly  held  to  be  conclu- 
sive on  the  whole  world.  It  is  now  the  settled  doctrine  of  this  court 
that  the  district  courts  of  this  state  may  be  clothed  with  full  power 
to  inquire  into  and  conclusively  adjudicate  the  state  of  the  title  of  all 
land  within  their  respective  jurisdictions  after  actual  notice  to  all 
of  the  known  claimants  within  the  jurisdiction  of  the  court,  and  con- 
structive notice  by  publication  of  the  summons  to  all  other  persons  or 
parties,  whether  known  or  unknown,  having  or  appearing  to  have 
some  interest  in  or  claim  thereto.  The  proceeding  provided  for  by 
the  act  in  question  is  such  a  one.  It  is  substantially  one  in  rem,  the 
subject-matter  of  which  is  the  state  of  the  title  of  land  within  the 
jurisdiction  of  the  court,  and  the  provisions  of  the  act  for  serving 
the  summons  and  giving  notice  of  the  pendency  of  the  proceeding 
are  full  and  complete,  and  satisfy  both  the  state  and  federal  con- 
stitutions. To  hold  otherwise  would  be  to  hold  that  the  courts  of 
this  state  cannot  in  any  manner  acquire  jurisdiction  to  clear  and 
quiet  the  title  to  real  estate  by  a  decree  binding  all  interests  atid  all 


120  BILLS  QUIA  TIMET.  (Part  3 

persons  or  parties,  known  or  unknown,  for  the  provisions  of  this 
act  are  as  full  and  complete  as  to  giving  notice  to  all  interested 
parties  as  it  is  reasonably  possible  to  make  them.  That  the  courts  of 
this  state  have  jurisdiction  to  so  clear  and  quiet  title  by  their  decrees 
is  not  longer  an  open  question  in  this  state.     ... 


SECTION  III.  OTHER  OUIA  TIMET  RELIEF 


LANGWORTHY  v.  CHADWICK. 

(Supreme   Court   of   Connecticut,    1838,    13    Conn.   43.) 

This  was  a  bill  in  chancery  for  an  injunction  and  security.     .     .     . 

On  the  24th  of  January,  1835,  the  personal  property  belonging 
to  the  testator's  estate,  amounting  to  1837  dollars,  was  distributed  ac- 
cording to  the  provisions  of  the  will.  To  the  defendant,  during  the 
time  she  should  remain  single  and  unmarried,  there  was  distributed 
the  use  of  the  following  personal  property,  viz.,  five  shares  of  the 
stock  of  the  Phoenix  Bank,  in  Hartford,  at  540  dollars;  two  shares 
of  the  New  London  and  Lyme  turnpike  stock,  at  12  dollars;  a  note 
against  Nathaniel  S.  Perkins  and  Thomas  S.  Perkins,  at  517  dollars; 
part  of  a  note  against  Thomas  S.  Perkins  at  41  dollars;  and  diverse 
articles  of  household  furniture,  amounting  to  the  sum  of  1224  dollars. 
The  same  property,  which  was  so  distributed  to  the  defendant,  during 
her  widowhood,  was  set  to  the  plaintiff,  Julia  Ann,  (who  had,  since 
the  testator's  death,  become  the  wife  of  George  F.  Langworthy)  for- 
ever after  the  termination  of  the  defendant's  use. 

The  defendant  was  requested  by  the  plaintiffs,  through  their  agent, 
to  make  some  arrangement,  by  which  the  property  distributed  to  her 
during  her  widowhood,  might  be  secured  in  such  a  manner  that  they 
could  have  the  benefit  of  it,  when  she  had  done  with  it ;  but  she  re- 
fused to  do  so;  and  also  refused  to  give  her  word,  that  the  prop- 
erty should  not  be  so  used  that  they  could  not  have  the  benefit  of  it, 
whenever  they  should  be  entitled  to  it,  unless  she  needed  it  for  her 
own  support.     ... 


C'll.    8.)  OTHER    QUIA    TIMET    RELIEF.  121 

BissELL,  J.  The  only  question  in  this  case,  is,  whether  upon  the 
facts  found  by  the  superior  court,  the  plaintiffs  are  entitled  to  the 
relief  sought  by  their  bill.  It  is  now  too  well  settled  to  admit  of  dis- 
pute, that  a  remainder  in  personal  chattels,  dependant  on  an  estate 
for  life,  may  be  created  by  grant  or  devise ;  and  it  is  equally  well 
settled,  that  the  interest  so  created  would  be  protected  in  chancery. 

It  was  formerly  held,  that  the  person  entitled  in  remainder  might 
call  for  security  from  the  legatee  for  life,  that  the  property  should 
be  forth-coming  at  his  decease.  Vachel  v.  Vachel  &  al.  1  Chan.  Ca. 
129.  Hyde  v.  Parratt  &  al.  1  P.  Wms.  1.  Bill  v.  Kinaston,  2  Atk.  82, 
Leeke  v.  Bennett,  1  Atk.  471.  Ferrard  v.  Prentice,  Ambl.  273.  But 
this  practice  has  been  overruled;  and  chiefly  on  the  ground  that  to 
decree  such  security  would  be  improperly  to  interfere  with  the  will 
of  the  testator.  And  the  course  now  is,  for  the  remainderman  to 
call  for  the  exhibition  of  an  inventory,  to  be  signed  by  the  legatee 
for  life,  and  deposited  in  court. 

When,  however,  it  can  be  shown,  that  there  is  danger  that  the 
property  will  be  either  wasted,  secreted  or  removed,  a  court  of  chan- 
cery will  interfere  to  protect  the  interest  in  remainder,  by  compelling 
the  tenant  for  life  to  give  security.  And  such  we  suppose  to  be  the 
well  settled  practice  in  Westminster-Hall.  Foley  &  al.  v.  Burnell  & 
al.  1  Bro.  Ch.  Ca.  279.  Batten  v.  Earnley,  2  P.  Wms.  164.  Slanning 
&  al.  v.  Style,  3  P.  Wms. -335.  1  Mad.  178.  2  Fearne,  35,  Williams  on 
Executors  859.  Rous  v.  Noble,  2  Vern,  249.  Indeed,  the  same  regard 
to  the  intention  of  the  testator,  which  forbids  a  court  of  chancery  to 
decree  that  security  shall  be  given,  where  there  is  no  danger,  would 
seem  to  require  such  interference,  where  that  intention  is  likely  to  be 
defeated,  by  the  conduct  of  the  devisee  for  life.  This  highly  reason- 
able principle  has  been  recognized  in  this  country,  and  was  fully 
adopted,  by  this  court,  in  the  case  of  Hudson  v.  Wadsworth  cK:  al.  8 
Conn.  Rep.  348. 

See  also  2  Sw.  Dig.  154.  2  Kent's  Com.  287.  2  Paige  123. 

The  case,  it  is  conceded,  is  to  be  governed  by  Hudson  v.  Wads- 
worth,  if  the  facts  found  bring  it  within  the  principle  of  that  case: 
and  upon  this  point  it  is  impossible  to  entertain  a  doubt.  The  facts 
in  this  case  are  much  stronger  than  that:  for  not  only  is  the  defendant 
found  to  be  irresponsible,  and  to  have  removed  out  of  the  state,  but  she 
has  also  removed  beyond  the  jurisdiction  of  the  court  wha(cvcr  of  the 


122'  BiL-LS  QUIA  TIMET.  (Part  3 

property  she  could  control,  and  has  repeatedly  threatened  that  she 
should  so  conduct  with  it  as  to  defeat  the  rights  of  the  plaintiffs. 

We  are,  therefore,  of  opinion,  that  the  prayer  of  the  bill  ought  to 
be  granted. 


VAN  DUYNE  v.  VREELAND. 

(New  Jersey  Court  of  Chancery,  1858,  12  N.  J.  Eq.  142.) 

The  Chancellor.  The  foundation  of  this  suit  is  a  parol  agree- 
ment, which  is  alleged  to  have  been  made  by  and  between  the  defend- 
ant, John  H.  Vreeland,  and  Nicholas  Vanduyne,  since  deceased,  the 
father  of  the  complainant.     .     .     . 

The  agreement  stated  in  the  bill,  and  the  circumstances  under  which 
it  was  made,  are  as  follows :  that  it  was  made  about  thirty-three  years 
prior  to  the  filing  of  the  bill ;  that  the  complainant's  mother  was  the 
sister  of  the  former  wife  of  the  defendant  Vreeland;  that  the  said 
Vreeland  and  his  said  wife  had  no  children ;  that  as  soon  as  the  com- 
plainant was  born,  Vreeland  and  his  wife  requested  the  complainant's 
father  and  mother  to  let  them  take  the  complainant,  and  permit  them 
to  adopt  and  keep  him  as  their  son;  and  as  an  inducement  for  them 
to  do  so,  they  promised  his  parents  to  treat  the  complainant  as  their 
own  son,  and  that  all  the  property  they  had  should  be  given  to  the 
complainant,  so  that  it  should  belong  to  him  at  the  death  of  Vree- 
land and  his  wife.     .     .     . 

Having  reached  the  conclusion  that  the  agreement  has  been  proved ; 
that  by  reason  of  its  part  performance  it  is  not  within  the  statute  of 
frauds;  that  the  defendant,  Vreeland,  has  offered  no  satisfactory 
reason  why  it  is  not  obligatory  upon  him  to  fulfill  it ;  and  that  the  con- 
veyance to  Brickell  is  a  fraud  upon  the  agreement,  the  most  difiicult 
question  remains — to  what  relief,  if  any,  is  the  complainant  entitled? 

The  bill  is  not  for  specific  performance.  There  can  be  no  such 
thing  as  a  specific  performance  in  the  case.  The  complainant  is  not 
nozu  entitled  to  the  enjoyment  of  the  property,  nor  is  it  possible  to 
ascertain  to  what  part  he  will  be  entitled.  He,  by  the  agreement, 
is  only  entitled  to  such  part  of  it  as  the  defendant  Vreeland  may  leave 
at  his  death.     He  may  exhaust  it  all  during  his  lifetime.     But  the 


^- ll-    ^')  OTHER    QUIA    TIMET    RELIEF.  123 

complainant  does  not  ask  the  court  to  give  him  the  property.     All 
he  asks  is  that  the  court  may  protect  him  against  the  consequences 
of  a  fraud  upon  his  rights,  which  will  follow  from  the  acts  of  the  de- 
fendant, unless  the  court  interferes  for  his  protection.    He  alleges  that 
he  had  an  agreement  with  Vreeland  respecting  this  property,  and  that 
Vreeland  and  Brickell  have  made  a  disposition  of  the  property  between 
them  to  defraud  him  of  his  rights  under  that  agreement.    He  does  not 
ask  for  any  redress  for  that  wrong,  but  that  the  court  will  protect 
him  against  future  probable  injury  to  his  rights,  which  may  justly  be 
anticipated  from  the  fraud  the  defendants  have  already  committed. 
If  Vreeland  was  dead,  the  complainant  could  now  ask  the  court  to 
declare  the  conveyance  to  Brickell  a  fraud,  and  to  compel  him  to  con- 
vey the  property  upon  such  terms  as  would  be  equitable.    This,  I  think, 
properly  comes  under  the  denomination  of  bills  quia  timet.     H  this 
court  does  not  interfere  now  for  the  protection  of  the  complainant, 
and  secure  this  property  at  the  death  of  Vreeland,  it  may  have  passed 
into  the  hands  of  a  bona  fide  purchaser,  and  the  complainant  then  be 
remediless.    A  bill  quia  timet  is  to  accomplish  the  ends  of  precautionary 
justice.    The  party  seeks  the  aid  of  a  court  of  equity  because  he  fears 
some   future   probable   injury   to   his   rights   or   interests.      They   are 
applied  to  prevent  wrongs  or  anticipated  mischiefs,  and  not  merely 
to  redress  them  when  done.     The  relief  granted  must  depend  upon 
circumstances.    2  Story's  Eq.  Jur.,  sec.  826.     "In  regard  to  equitable 
property,  the  jurisdiction  is  equally  applicable  to  cases  where  there 
is  a  present  right  of  enjoyment,  and  to  cases  where  the  right  of  en- 
joyment is  future  or  contingent.     The  object  of  the  bill,  in  all  such 
cases,  is  to  secure  the  preservation  of  the  property  to  its  appropriate 
uses  and  ends;  and  whenever  there  is  danger  of  its  being  converted 
to   other  purposes,   or   diminished,   or   lost   by   gross   negligence,   the 
interference  of  a  court  of   equity  becomes   indispensable."    lb.,   sec. 
827.     .     .     . 

I  have,  after  much  reflection,  determined  to  direct  a  decree  to 
this  effect — that  the  conveyance  from  Vreeland  to  Brickell  be  declared 
a  fraud  upon  the  agreement  existing  between  the  complainant  and 
Vreeland ;  that  Brickell  be  decreed  to  hold  the  land  subject  to  that 
agreement,  and  upon  the  following  terms ;  that  at  the  death  of  Vree- 
land an  account  shall  be  taken,  in  which  allowance  shall  be  made  to 
Brickell  for  the  value  of  such  permanent  improvements  as  he  may  have 


124  BILLS  QUIA  TIMET.  (Part  3 

put  upon  the  lands,  and  for  his  costs,  expenses,  and  trouble  for  the 
support  of  Vreeland  and  his  wife  and  of  the  two  colored  servants  up 
to  the  time  of  Vreeland's  death,  under  the  bond  of  the  eighth  of 
November,  1854;  that  Brickell  shall  then  account  for  the  rents  and 
profits  of  the  land ;  and  that  upon  the  payment,  by  the  complainant  to 
Brickell,  of  whatever  may  be  found  due  the  latter  upon  such  accounts, 
Brickell  shall  convey  the  land  to  the  complainant,  which  shall  remain 
subject  to  the  widow's  dower,  if  Mrs.  Vreeland  should  survive  her 
husband. 

It  appears  to  me  such  a  decree  is  equitable,  and  respects  the  rights 
of  all  parties.  Vreeland  cannot  complain  of  it.  The  court  does  not 
interfere  with  his  right  to  dispose  of  his  property  as  he  pleased,  ex- 
cept so  far  as  it  is  a  fraud  upon  his  agreement  with  the  complainant. 
By  his  conveyance  to  Brickell,  he  has  deprived  himself  of  all  control 
over  the  property,  except  so  far  as  he  has  retained  an  interest  in  it 
to  secure  his  agreement  with  Brickell.  The  decree  will  not  interfere 
with  the  enjoyment  of  it,  as  far  as  he  has  secured  it  for  himself.  As 
far  as  Brickell  is  concerned,  it  is  admitted,  and  there  is  no  doubt  of 
its  sufficiency  to  remunerate  him  for  any  expenditures  he  may  incur 
in  the  support  of  all  the  persons  entitled  to  support  up  to  the  time  of 
Vreeland's  death.  If  there  is  anything  over  after  Vreeland's  death, 
the  complainant's  claim  to  it  is  paramount  to  that  of  Brickell.  Brick- 
ell can  lose  nothing,  as  the  property  is  ample  for  his  security.  It 
is  right  that  Mrs.  Vreeland's  dower  in  the  property  should  be  secured. 
Upon  her  marriage  with  Vreeland,  she  acquired  an  inchoate  right  of 
dower  in  the  property,  notwithstanding  the  agreement  of  which  the 
complainant  claims  the  benefit.  The  agreement  with  the  complainant 
was  subject  to  such  a  contingency.  At  Vreeland's  death,  the  parties 
may  make  their  settlement  upon  the  terms  of  the  decree.  If  they 
cannot,  they  have  their  redress  in  this  court.  The  decree  settles  their 
rights. 


Ch.    9.)  BILLS    OF  INTERPLEADER.  125 


CHAPTER  IX.  BILLS  OF  INTERPLEADER 


BYERS  V.  SANSOM-THAYER  COMMISSION  CO. 

(Illinois  Appellate  Court,  1904,  111  111.  App.  575.) 

Mr.  Justice  Ball  delivered  the  opinion  of  the  court. 

The  only  personal  action  in  which  the  right  of  interpleader  existed 
at  common  law  is  detinue.  This  defect,  which  might  subject  the 
defendant  to  two  judgments  for  the  same  cause  of  action  by  different 
plaintiffs,  was  early  seen;  and  the  court  of  chancery,  to  prevent  the 
iniquity  of  such  a  double  judgment,  suffered  the  defendant  to  come 
into  its  jurisdiction,  and,  upon  his  naming  the  contending  claimants 
and  surrendering  or  offering  to  surrender  to  the  court  the  thing  in 
contest,  the  court  called  such  parties  before  it,  and,  dismissing  the 
petitioner  from  further  attendance  except  to  pay  the  money  or  to 
deliver  the  thing  claimed,  compelled  the  contestants  to  try  their  re- 
spective titles  before  it.  The  claimants  then  stood  before  the  court  to 
litigate  the  questions  of  right  pending  between  them  to  the  same  extent 
as  if  the  one  had  brought  a  bill  against  the  other  predicated  upon  the 
same  matter  and  for  the  same  purpose.  Willson  v.  Salmon,  45  N.  J. 
Eq.  131.  No  other  question  than  that  of  the  right  to  the  property 
in  dispute  can  be  litigated  in  such  suit.  Sherman  v.  Partridge,  4 
Duer  (N.  Y.),  646. 

At  first,  this  much  needed  and  bencficient  remedy  was  hedged  about 
by  strict  rules ;  but,  as  its  equity  and  usefulness  were  more  clearly 
recognized,  these  rules  were  modified  (Supreme,  etc.,  v.  Merrick,  163 
Mass.  374)  until  now  the  test  of  the  right  to  an  interpleader  may  be 
stated  thus :  do  the  defendants  claim  the  same  thing,  and  will  the 
litigation  between  the  defendants  determine  the  rights  of  each  and 
all  of  the  defendants  as  against  the  complainant  and  as  between  them- 
selves as  to  the  thing  which  is  in  dispute?  In  Tloggart  v.  Cutts,  1 
Craig  &  P.  204,  Lord  Cottcnliam  sai<l :  "The  definition  of  'inter- 
pleader' is  not  and  cannot  now  be  disputed,     it  is  where  the  plaintiff 


126  BILLS     OF    INTERPLEADER.  (Part    3 

says,  'I  have  a  fund  in  my  possession,  in  which  I  claim  no  personal 
interest,  and  to  which  you,  the  defendants,  set  up  conflicting  claims ; 
pay  me  my  costs,  and  I  will  bring  the  fund  into  court,  and  you  shall 
contest  it  between  yourselves.'  "... 


POST  V.  EMMETT. 

(Supreme  Court  of  New  York,  1899,  40  N.  Y.  App.  Div.  477,  58  N.  Y.  Supp. 

129.) 

RuMSEY,  J.  .  .  .  The  parties  do  not  differ  as  to  the  rule  of 
law  applicable  to  these  cases,  which  is  neither  unsettled  nor  doubtful. 
Before  one,  situated  as  the  plaintiffs  in  this  action  seem  to  be,  is  en- 
titled to  an  order  of  interpleader  between  persons  making  adverse 
claims  to  the  securities  in  his  hands,  it  is  necessary  to  establish,  not 
only  that  adverse  claims  are  made,  but  that  the  claims  have  some 
reasonable  foundation,  and  that  there  is  reasonable  doubt  whether 
the  stakeholder  would  be  safe  in  paying  over  the  money.  The  mere 
fact  that  a  claim  has  been  made  is  not  sufficient,  but  it  is  necessary 
to  show,  in  addition  to  that,  some  facts  or  circumstances  which  would 
satisfy  the  court  that  the  claim  made  has  such  facts  to  support  it,  or 
such  foundation  in  law  under  it  as  would  create  a  reasonable  doubt 
that  the  holder  of  the  securities  would  not  be  safe  in  paying  them  over 
to  the  person  from  whom  he  received  them.  Bank  v.  Yandes,  44 
Hun,  55;  Stevenson  v.  Insurance  Co.,  10  App.  Div.  233,  41  N.  Y.  Supp. 
964;  Schell  v.  Lowe,  75  Hun,  43,  26  N.  Y.  Supp.  991.  H  the  party 
claiming  that  he  is  entitled  to  be  protected  from  an  adverse  claim 
comes  into  court  for  that  protection,  he  is  not  entitled  to  it,  unless  he 
establishes  that  there  is  some  foundation  for  the  claim,  or  plausibility 
in  it,  so  that  the  court  can  see  that  he  needs  protection  because  he  is 
likely  to  suffer  from  the  adverse  claim  if  he  pays  or  delivers  the 
security  in  hostility  to  it.  Mars  v.  Bank,  64  Hun,  424,  19  N.  Y.  Supp. 
791.  It  was  formerly  held  that  the  mere  fact  of  a  claim  was  sufficient 
to  entitle  the  stakeholder  to  an  interpleader,  but  that  rule  has  been 
abandoned,  and  the  rule  now  seems  to  be  settled  as  stated  above. 
Judged  by  what  is  now  the  settled  rule,  the  plaintiffs'  papers  are  en- 
tirely insufficient  to  entitle  them  to  the  relief  which  they  ask.     The 


Ch.    9.)  BILLS   OF  INTERPLEADER.  127 

securities  received  by  them  from  Miss  Emmett  stood  in  her  name  and 
had  been  used  as  collateral  security  for  a  note  given  by  her  and  in- 
dorsed by  Joseph  Richardson.     There  was  nothing  upon  their  face 
to  show  that  Joseph  Richardson  had  any  title  or  interest  whatever  in 
the  securities.    No  evidence  is  produced  that  he  ever  owned  them,  or 
that  they  were  bought  originally  with  his  money,  or  that  in  any  way  he 
had  any  interest  whatever  in  them.     Nothing  is  presented  to  warrant 
any  doubt  on  the  part  of  the  plaintitls  that  the  securities  belonged  to 
Miss  Emmett,  except  a  claim  by  Butler,  as  temporary  administrator  of 
Joseph  Richardson,  that  he  is  entitled  to  them  as  such  administrator, 
accompanied  by  an  unverified  statement  of  the  grounds  of  his  claim. 
There  is  not  one  w^ord  of  testimony  in  the  case  to  sustain  this  claim, 
and  if  the  claim  had  been  verified,  there  is  nothing  to  throw  any  doubt 
upon  the  ownership  of  these  securities  by  Miss  Emmett.     The  plain- 
tiff's claim  is  therefore  entirely  unsupported.     But,   to   add  to  the 
strength  of  the  defendant's  contention,  there  is  produced  on  her  part 
her  own  affidavit,  explaining  the  circumstances  stated  in  the  unverified 
claim  as  to  the  foundation  of  the  right  of  Joseph  Richardson,  and 
showing  clearly  that  the  title  to  the  securities  was  in  her,  and  that  they 
never  belonged  to  Richardson.    In  face  of  these  proofs,  it  is  very  clear 
that  the  claim  adverse  to  the  plaintiff's  bailor  is  entirely  unfounded,  and 
there  is  no  reason  to  apprehend  that  they  are  in  any  danger  whatever 
if  they  pay  over  the  balance  in  their  hands  to  Miss  Emmett,  from  whom 
they  received  the  stock,  and  transfer  to  her  the  securities  that  are 
left.     .     .     . 


CRANE  V.  McDonald. 

(New  York  Court  of  Appeals,  1890,  118  N.  Y.  648,  23  N.  K.  1)91.) 

Vann,  J.  The  material  allegations  in  a  bill  of  interpleader,  accord- 
ing to  an  early  decision  by  the  Court  of  Errors,  are:  (1)  That  two  or 
more  persons  have  preferred  a  claim  against  the  complainant;  (2) 
that  they  claim  the  same  thing;  (3)  that  the  complainant  has  no  bene- 
ficial interest  in  the  thing  claimed;  and  (4)  that  he  cannot  determine, 
without  hazard  to  himself,  to  which  of  the  defendants  the  thing  be- 
longs. (Atkinson  v.  Manks,  1  Cow.  691,  703.)     It  was  also  held  in  that 


128  BILLS     OF    INTERPLEADEE.  (Part    i> 

case  that  the  complainant  should  annex  to  his  bill  an  affidavit  that  there 
is  no  collusion  between  him  and  any  of  the  parties  and  that  he  should 
bring  the  money  or  thing  claimed  into  court  so  that  he  could  not  be 
benefited  by  the  delay  of  payment  which  might  result  from  the  filing  of 
his  bill.  This  method  of  procedure,  in  substance,  still  prevails.  (Doni 
V.  Fox,  61  N.  Y.  268.)  The  plaintiff  insists  that  he  has  conformed  to 
the  practice  thus  laid  down  in  every  particular,  while  the  appellant 
contends  that  the  complaint  is  not  sufficiently  specific  with  reference 
to  the  claims  of  the  defendants,  and  that  no  privity  is  shown  betweep 
them  in  relation  to  their  respective  demands. 

The  complaint  describes  the  claim  of  the  defendant  McDonald  more 
fully  than  that  of  the  defendant  Goodrich,  because  the  former  had  sued 
him  and  had  thus  furnished  him  with  a  definite  description.  While 
the  claim  of  the  latter  was  not  clearly  nor  fully  described,  enough  was 
set  forth  to  show  that  it  was  not  a  mere  pretext,  but  that  it  apparently 
rested  upon  a  reasonable  and  substantial  foundation.  If  the  appellant 
desired  that  it  should  be  made  more  definite  and  certain,  his  remedy 
was  by  motion  under  section  546  of  the  Code  of  Civil  Procedure. 
(Neftel  V.  Lightstone,  77  N.  Y.  96.)  Upon  the  trial,  according  to 
the  old  chancery  practice,  as  it  appeared  by  the  answers  of  the  defend- 
ants that  each  claimed  the  fund  in  dispute,  no  other  evidence  of  that 
fact  was  required  to  entitle  the  plaintiff  to  a  decree.  (Balchan  v. 
Crawford,  1  Sandf.  Ch.  380.) 

In  this  case,  however,  the  point  was  not  left  to  be  determined  by 
the  pleadings,  but  evidence  was  introduced  upon  the  subject  and  it 
appeared  that  at  least  a  fair  doubt  existed  as  to  the  rights  of  the  con- 
flicting claimants.  It  was  not  necessary  for  the  plaintiff  to  decide,  at 
his  peril,  either  close  questions  of  fact  or  nice  questions  of  law,  but  it 
was  sufficient  if  there  was  a  reasonable  doubt  as  to  which  claimant  the 
debt  belonged.  When  a  person,  without  collusion,  is  subjected  to  a 
double  demand  to  pay  an  acknowledged  debt,  it  is  the  object  of  a  bill 
of  interpleader  to  relieve  him  of  the  risk  of  deciding  who  is  entitled  to 
the  money.  If  the  doubt  rests  upon  a  question  of  fact  that  is  at  all 
serious  it  is  obvious  that  the  debtor  cannot  safely  decide  it  for  himself, 
because  it  might  be  decided  the  other  way  upon  actual  trial,  while  if  it 
rests  upon  a  question  of  law,  as  was  said  in  Dorn  v.  Fox  (61  N.  Y. 
270),  "so  long  as  a  principle  is  still  under  discussion  .  .  .  it  would 
seem  fair  to  hold  that  there  was  a  sufficient  doubt  and  hazard  to  justify 


^ll-    9.)  BILLS   OF  IXTERPLEADEK. 


129 


the  protection  which  is  afforded  by  the  beneficent  action  of  interplead- 
er." Although  the  claim  of  Mr.  Goodrich  has  since  been  held  untenable 
by  this  court  (Goodrich  v.  McDonald.  112  N.  Y.  157),  it  does  not 
follow  that  no  doubt  existed  when  this  action  was  commenced,  be- 
cause the  Supreme  Court,  both  at  Special  and  General  Term,  held  that 
it  was  valid  and  attempted  to  enforce  it.  This  conflict  in  the  decisions 
of  the  courts  shows  that  the  adverse  claims  of  the  defendants  involved 
a  difficult  and  doubtful  question  and  is  a  conclusive  answer  to  the  con- 
tention of  the  appellant  that  the  plaintiff  did  not  need  the  aid  of  an 
action  of  this  character.  Was  it  possible  for  him  to  safely  decide  a 
point  so  intricate  as  to  cause  those  learned  in  the  law  to  differ  so 
widely  ? 

The  law  did  not  place  so  great  a  responsibility  upon  him,  but  pro- 
vided him  with  a  remedy  to  protect  himself  against  the  double  liability, 
or,  to  speak  more  accurately,  against  a  double  vexation  on  account  of 
one  liability.     .     .     . 

It  required,  however,  that  he  should  act  in  good  faith,  and  he 
insists  that  he  furnished  ample  evidence  upon  that  question.  He  offer- 
ed to  pay  the  money  to  Mrs.  McDonald  if  she  would  indemnify  him 
against  the  claim  of  Mr.  Goodrich,  but  she  refused  to  do  so,  and  com- 
menced an  action  to  recover  the  amount  involved.  A  like  offer  to  Mr. 
Goodrich  upon  the  condition  that  he  should  furnish  indemnitv  was  de- 
clined, and  legal  proceedings  were  threatened.  Neither  defendant 
would  recede  from  the  position  thus  taken,  but  both  persisted  in  their 
respective  demands.  The  plaintiff  thereupon  paid  the  money  into 
court  pursuant  to  its  order,  and  then  commenced  this  suit  annexing 
to  his  complaint,  in  addition  to  the  usual  verification,  an  affidavit 
.stating  that  the  action  was  brought  in  good  faith  and  without  collusion 
with  either  defendant  or  with  any  person  "in  their  behalf."  It  did 
not  appear  that  he  had  attempted  to  favor  the  position  of  either  claim- 
ant. These  facts,  with  others  appearing  in  the  record,  furnished 
adequate  support  to  the  conclusion  of  the  trial  judge  that  the  plaintiff 
acted  in  good  faith.     .     .     . 

If  the  actual  truth  were  a  defense  to  a  bill  of  interpleader,  the 
argimicnt  of  the  appellant  would  be  conclusive,  but  necessarily  the 
plaintiff  in  such  an  action  has  the  right  to  rely  upon  what  is  claimed  to 
be  true,  as  otherwise  the  remedy  would  be  of  no  value. 

3   Eq— 9 


330  BILLS     OF    INTEKPLEADER.  (Pai't    O 


FARGO  V.  ARTHUR. 

(Supreme  Court  of  New  York,  1872,  43  How.  Prac.  193.) 

Learned,  J.  This  is  an  action  of  interpleader,  brought  to  deter- 
mine who,  among  numerous  claimants,  are  entitled  to  the  reward  of 
$5,000  offered  by  the  American  M.  U.  Express  Company,  after  the 
robbery  of  Thomas  A.  Halpine,  one  of  their  messengers.  The  plain- 
tiffs are  the  company,  and  they  have  brought  into  court  the  amount 
aforesaid.  The  defendants  are  the  persons  who  severally  claim  to  be 
entitled  to  the  amount,  or  to  a  part  of  it 

All  of  the  persons  whose  names  have  been  mentioned  as  giving  in- 
formation, or  as  participating  in  the  arrest,  claim  the  reward  or  some 
part  of  it.  Their  views  are  very  conflicting.  Some  claim  that  the  per- 
son who  first  furnished  any  information  which  ultimately  led  to  the 
conviction,  is  entitled  to  the  whole  amount.  Some  claim  that  the  per- 
sons who  made  the  arrest  are  entitled  to  the  whole,  exclusive  of  all 
others.  Some  claim  that  there  should  be  an  equitable  distribution  of 
the  award  among  all,  including  those  who  furnished  information  and 
those  who  made  the  arrest.  And  still  another  claim  is,  that  those  who 
made  the  arrest  are  entitled  to  $5,000  and  those  who  furnished  in- 
formation to  another  $5,000.  Burwell,  Thomas,  Leland,  Arthur  and 
Potter,  however,  agree  to  share  among  themselves  whatever  they  or 
any  of  them  shall  be  entitled  to. 

1.  A  case  like  this  is  peculiarly  proper  for  an  interpleader.  The 
plaintiffs  are  ready  to  pay  to  the  persons  lawfully  entitled.  Some  of 
the  defendants  claim  the  whole;  some  claim  an  equitable  distribution. 
It  is  evidently  a  case  in  which  the  matter  should  be  adjusted  in  one  suit, 
and  to  which  the  plaintiffs  do  not  know  to  whom  they  ought  to  pay  the 
money.  (2  Story  Eq.  sees.  806  and  29;  City  Bk.  agt.  Bangs,  2  Paige, 
570).      .     .     . 

METCALF  V.  HERVEY. 

(High  Court  of  Chancery,  1749,  1  Ves.  Sr.  248.) 

Demurrer  to  a  bill,  which  was  founded  on  a  rumour,  that  there  was 
issue  by  Lady  Hammer ;  which  was  suggested  to  be  intitled  to  the  estate 


Ch.    9.)  BILLS   OF  TXTERPLEADER.  131 

in  question;  and  praying  that  if  there  was  any  such  person,  he  might 
interplead  with  the  defendant,  and  also  praying  an  injunction  to  stay 
proceedings  in  ejectment  by  defendant,  and  to  any  action  for  mesne 
profits. 

Two  causes  for  demurrer  were  assigned.  First  for  the  insufficiency 
of  the  affidavit  annexed  to  this  bill  of  interpleader,  in  not  saying  it  was 
at  the  plaintiff's  own  expence,  as  well  as  that  there  was  no  collusion 
with  the  defendant.     ... 

Lord  Chancellor.  .  .  .  As  to  the  first  cause  of  demurrer, 
there  is  no  such  rule  of  court ;  the  material  part  of  the  affidavit  being 
that  the  plaintiffs  should  swear  they  did  not  collude  with  any  of  the 
defendants :  whereas  the  requiring  to  swear,  it  is  at  their  own  expence, 
goes  farther:  and  such  an  affidavit  would  require  the  denying  it  even 
in  cases  where  a  person  may  bear  the  costs  of  suit  without  being  a 
maintainer :  as  a  father  furnishing  the  expences  of  a  suit  on  a  bill  by 
his  son.     ... 


COGSWELL  V.  ARMSTRONG. 

(Supreme  Court  of  Illinois,  1875,  77  111.   139.) 

Craig,  J.  This  was  a  bill  of  interpleader,  filed  by  Henry  D.  Cogs- 
well, in  the  circuit  court  of  McLean  county,  against  William  Arm- 
strong, S.  M.  Murphy,  James  Walsh,  Geo.  R.  Brooks,  and  Charles  H. 
Kellogg.     ... 

The  only  other  question  necessary  to  be  considered,  is,  whether  appel- 
lant was  entitled  to  be  allowed  the  judgment  of  $72  he  held  against 
Armstrong,  and  upon  this  question  there  can  be  no  doubt,  when  the 
rules  of  law  that  control  a  bill  of  this  character  are  properly  understood. 
A  bill  of  interpleader  is  ordinarily  exhibited  where  two  or  more  persons 
claim  the  same  debt,  or  duty,  or  other  thing,  from  the  plaintiff  by  dif- 
ferent or  separate  interests,  and  he,  not  knowing  to  which  of  the 
claimants  he  ought,  of  right,  to  render  the  same  debt,  duty  or  other 
thing,  fears  that  he  may  suffer  injury  from  their  conflicting  claims, 
and  therefore  prays  that  they  may  be  compelled  to  interplead  and  state 
their  several  claims,  so  that  the  court  may  adjudge  to  whom  the  same 
debt,  duty  or  other  thing  belongs.     Story's  Equity  Pleading,  see.  291. 


132  BILLS     OF    INTERPLEADER.  (Part    I] 

In  Haggart  v.  Cutts,  1  Craig  &  Phillips,  204,  Lord  Coltenham  said : 
"The  definition  of  'interpleader'  is  not  and  can  not  now  be  disputed. 
It  is  where  the  plaintiff  says,  'I  have  a  fund  in  my  possession,  in  which 
I  claim  no  personal  interest,  and  to  which  you,  the  defendants,  set  up 
conflicting  claims ;  pay  me  my  costs,  and  I  will  bring  the  fund  into 
court,  and  you  shall  contest  it  between  yourselves.'  " 

In  this  case,  one  of  the  defendants  did  not  contest  the  right  to  the 
money.  The  other  defendants  appeared  and  insisted  upon  the  payment 
of  the  money  to  them.  The  complainant,  however,  who  could  only  file 
his  bill  and  have  it  determined  which  of  the  defendants  claiming  the 
fund  was  entitled  to  it,  is  urging  that  a  portion  of  the  fund  should  go 
to  him.  We  are  aware  of  no  authority  which  would  sanction  the  right 
of  appellant  to  enter  into  the  contest  for  a  portion  of  the  fvmd.     .     .     . 


WELCH  V.  BOSTON. 

(Supreme  Court  of  Massachusetts,  1911,  208  Mass.  326,  94  N.  E.  271.) 

Knowlton^  C.  J.  The  plaintiffs,  as  executors  of  the  will  of  Quincy 
A.  Shaw,  have  been  taxed  by  the  assessors  of  the  city  of  Boston  for  a 
large  amount  of  personal  property  belonging  to  his  estate.  They  con- 
tend that,  before  the  time  for  the  assessment  of  this  tax,  the  property 
had  passed  to  themselves  as  trustees,  and  was  therefore  not  taxable  in 
Boston.  If  they  are  right  in  this  contention,  they  have  a  perfect  remedy 
by  paying  the  tax  and  suing  the  city  and  collecting  it  back.  It  appears 
that,  as  trustees  under  this  will,  they  have  also  been  taxed  for  portions 
of  this  property  in  the  city  of  Beverly  and  the  towns  of  Brookline  and 
Milton,  where  different  beneficiaries  under  the  trust  reside,  and  where 
it  is  taxable,  if  it  was  legally  transferred  from  the  executors  to  the 
trustees,  and  notices  thereof  given  to  the  assessors,  in  accordance  with 
the  requirements  of  the  law.  The  plaintiffs  have  brought  a  bill  which 
is  referred  to  as  a  bill  of  interpleader,  and  have  made  these  four  munic- 
ipalities, and  the  assessors  and  the  tax  collector  of  each  of  them, 
parties,  seeking  to  compel  them  to  come  in  and  interplead,  and  thus  to 
try  the  validity  of  the  several  assessments  made  upon  the  property. 
The  first  question  is  whether  the  court  has  jurisdiction  of  the  case. 

This  is  not  strictly  a  bill  of  interpleader,  and,  apart  from  consider- 
ations relative  to  the  statutes  providing  for  the  assessment  and  collec- 


Cll.    9.)  BILLS    OF  INTEBPLEADER.  133 

tion  of  taxes,  to  w  lilch  we  shall  refer  hereafter,  it  is  plain  that  it  can- 
not be  maintained  as  such.    It  is  not  a  case  to  settle  the  right  to  certain 
property  which  is  brought  into  court.     The  claim  of  each  of  the  de- 
fendants is  entirely  independent  of  that  of  each  of  the  others.     There 
is  no  privity  between  them,  or  between  either  of  them  and  the  plaintiffs. 
It  is  not  a  case  in  which  the  plaintiffs  are  free  from  interest  in  the 
controversy;  for  the  rate  of  taxation  differs  greatly  in  the  different 
places,  and  it  is  for  the  interest  of  the  plaintiffs,  or  of  those  whom  they 
represent,  that  some  of  the  defendants  should  prevail  rather  than  that 
some  others  of  them  should  prevail.    No  property  is  brought  into  court 
to  be  contended  for  by  the  different  defendants.     The  plaintiffs  ask 
the  court  to  determine  the  truth  as  to  certain  facts  which  are  in  dis- 
pute between  the  parties,  and  upon  the  existence  of  which  the  legal 
rights  of  some  of  the  parties,  in  the  performance  of  their  official  duties, 
depended  when  they  assumed  to  perform  these  duties.    The  suit  cannot 
be  maintained  as  a  bill  of  interpleader.    Third  National  Bank  of  Boston 
V.  Skillings  Lumber  Co.  132  Mass.  410.     ... 

But  these  considerations  arising   from   the   laws   in  regard   to  the 
raising  of  money  by  taxation  are  conclusive.     We  have  an  elaborate 
statutory  system  covering  this   subject,  the  purpose   of   which   is  to 
assure  a  prompt  collection  of  revenue  for  the  government,  in  its  dif- 
ferent   departments    and    subdivisions.      Remedies    are    provided    for 
those  who  are  compelled  to  pay  taxes  illegally  assessed,  which  are  direct 
and  adequate.    For  this  reason  it  has  been  decided  many  times,  in  this 
Commonwealth,  that  equity  will  not  interfere  to  determine  the  validity 
of  a  tax,  but  will  leave  the  machinery  of  government  to  move  precisely 
as  it  was  intended  to  move  by  the  framers  of  the  law^s  in  regard  to  the 
assessment  and  collection  of  taxes.     Brewer  v.  Springfield,  97  Mass. 
152.     Loud  V.  Charleston,  99  Mass.  208.     Hunnewell  v.  Charlestown, 
106  Mass.  350.    Norton  v.  Boston,  119  Mass.  194,  195.     The  rule  has 
been  reaffirmed  recently.  Webber  Lumber  Co.  v.  Shaw,  189  Mass.  366. 
Greenhood  v.  MacDonald,  183  Mass.  342.     The  doctrine  was  applied 
to  a  case  identical  with  the  one  at  bar.  in  all  its  material  facts.     Macy 
V.  Nantucket,  121  Mass.  351.    That  this  case  rightly  states  the  law  of 
this  Commonwealth  has  never  been  questioned.     IMie  cases  in   New 
York  are  under  a  statutory  system  which  is  materially  different  from 
that  of  Massachusetts.     It  is  held  there  that  assessors  are  liable  to  a 
suit  for  damages  for  assessing  a  tax  against  one  upon  whom  they  have 


134  BILLS     OF    INTEEPLEADEE.  (Part    o 

no  right  to  make  an  assessment.  Dorn  v.  Fox,  61  N.  Y.  264.  Dorn  v. 
Backer,  61  N.  Y.  261.  Mohawk  &  Hudson  Railroad  v.  Clute,  4  Paige, 
384.  Thomson  v.  Ebbets,  Hopk.  Ch.  272.  On  the  question  before  us 
these  decisions  are  at  variance  with  our  own. 

The  only  remaining  question  is  whether  we  have  jurisdiction  from 
the  fact  that  none  of  the  defendants  has  objected  to  the  jurisdiction. 
This  is  a  matter  affecting  the  public  interest.  The  considerations 
which  have  moved  this  court  to  decline  to  interfere  with  the  collection 
of  a  tax  assessed  by  the  proper  officers  have  been  considerations  of 
public  policy,  adopted,  and  impliedly  declared,  by  the  Legislature,  in  the 
statutes  relative  to  the  taxation  of  property.  The  assessors  of  each 
of  the  cities  and  towns  have  been  brought  before  the  court  as  defend- 
ants in  this  case.  Their  duties  are  prescribed,  and  when  they  have 
assessed  the  taxes  and  issued  their  warrant  to  the  collector  they  have 
no  power  to  do  anything  that  shall  interfere  with  the  collection  of  the 
taxes.  They  cannot  consent  to  proceedings  in  a  court  of  equity,  to 
determine  the  validity  of  the  action  that  they  have  taken  officially  under 
their  oaths.  They  are  a  board  of  public  officers  who  act  under  the 
authority  of  the  statutes.  It  is  no  part  of  their  duty  to  represent  the 
people  in  a  suit  of  this  kind. 

The  same  is  equally  true  of  the  collector  of  taxes.  When  his  warrant 
is  committed  to  him  by  the  assessors,  he  is  to  do  that  which  the  law  has 
prescribed  for  him,  namely,  he  is  to  collect  the  taxes,  and  all  of  them, 
so  far  as  possible.  He  has  no  more  power  than  a  member  of  the  school 
committee  to  waive  anything,  or  to  consent  to  anything  that  shall  put 
in  question  the  validity  of  the  tax  before  a  court  of  equity.     .     .     . 


WARINGTON  v.  WHEATSTONE. 

(In  Chancery,  1821,  Jacob,  202.) 

The;  Lord  ChancEi.i.or.  The  injunction  on  an  interpleading  bill 
does  not,  like  the  common  injunction,  leave  the  plaintiff  at  law  at 
liberty  to  demand  a  plea,  and  proceed  to  judgment,  but  it  stays  all 
proceedings.  The  plaintiff  in  an  interpleading  bill  admits  that  he  has 
no  defence,  and  makes  an  affidavit  that  he  does  not  collude  with  either 
party ;  the  protection  that  he  has  is,  that  he  is  relieved  from  their  pro- 


Ch.    9.)  BILLS   OF  INTERPLEADER.  135 

ceedings  against  him,  whether  at  law  or  in  equity,  as  soon  as  his  dili- 
gence enables  the  court  to  do  so.  The  question  here  seems  to  be, 
whether  that  protection  is  to  be  taken  away,  because  the  plaintiff  in 
some  other  suit  may  make  a  motion  for  payment  of  the  money  into 
court.  If  a  party  gives  notice  of  his  claim  to  the  money  by  filing  a  bill, 
and  it  is  afterwards  paid  away  pending  the  suit,  I  do  not  know  that  his 
not  having  moved  for  it  to  be  paid  in  would  be  any  protection. 

It  is  important  certainly  to  consider  these  points,  for  I  understand 
that  an  opinion  is  afloat  that  on  an  interpleading  bill  the  injunction 
cannot  be  moved  for  till  the  time  for  answering  it  out.  I  always 
thought  that  it  was  not  so,  but  that  the  injunction  might  be  moved  for 
at  once;  indeed  there  are  some  cases  where  the  injunction  would  be 
quite  useless,  unless  it  could  be  obtained  immediately.  Some  mistake 
I  believe  arose  in  a  communication  that  I  had  on  this  point  with  the 
Vice-Chancellor  through  Mr.  Crofts.  I  think  I  then  mentioned  to  him 
the  case  of  the  plaintiff,  not  knowing  that  a  bill  would  be  necessary, 
from  not  having  notice  of  the  demand  of  one  party,  till  the  other  had 
obtained  judgment,  and  was  about  to  take  out  execution. 

Here  the  question  is,  whether  the  plaintiffs  can  have  the  same  pro- 
tection in  another  person's  suit  that  they  can  have  in  their  own.  If 
you  do  not  let  them  have  the  carriage  of  the  cause,  and  the  plaintiff 
in  the  other  does  not  move  for  them  to  pay  the  money  in,  I  question 
whether  his  not  doing  so  would  be  an  answer  to  him  at  the  hearing,  for 
the  pendency  of  the  suit  is  notice  of  his  demand.  If  the  plaintiffs  in 
this  cause  could  make  this  motion  in  the  other  cause,  it  must  be  sup- 
ported by  an  affidavit  of  there  being  no  collusion,  otherwise  they  could 
not  be  allowed  the  same  advantages  that  they  would  have  upon  a  bill  of 
interpleader ;  but  I  do  not  remember  any  instance  of  such  a  motion. 


PRUDENTIAL  ASSURANCE  CO.  v.  THOMAS.. 

(In  Chancery,  1867,  3  Ch.  App.  74.) 

This  was  a  motion  in  an  interpleader  suit. 

Sir  John  Rolt,  Iv.  J.  .  .  .  Then  it  is  said  that  the  order  which 
was  made  ought  not  to  have  been  an  order  to  stay  the  prosecution  of 
the  other  suit,     it  is  first  of  all  said  that  the  existence  of  a  suit  in  tiiis 


]'S6  BILLS     OF    INTERPLEADER.  (Part    3 

Court  by  one  of  the  claimants  was  a  sufficient  reason  why  the  Court 
should  not  have  granted  the  injunction ;  but  I  think  the  case  of  Waring- 
ton  V.  Wheatstone  (Jac.  202),  is  clear  upon  that  point,  and  is  a  very 
distinct  authority  that  there  is  a  reason  for  coming  to  this  Court  by 
way  of  interpleader,  when  one  claimant  insists  that  she  will  hold  the 
company  responsible  if  they  pay  the  adverse  claimant.  One  of  the 
claimants  was  proceeding  in  equity  to  enforce  payment,  and  the  other 
was  declaring  that  she  would  hold  the  company  responsible  if  they 
paid  that  claimant ;  and  it  appears  to  me  that  that  was  a  reason  why  the 
company  should  force  them  to  interplead.  If  Thomas  had  proceeded 
at  law  it  would  not  have  been  in  his  power  to  have  made  Mrs.  Black 
a  party  to  the  litigation ;  but,  having  determined  to  come  into  a  Court  of 
equity,  nothing  w^ould  have  been  easier  for  him  than  to  have  made  her 
a  party.  He  knew  that  she  was  a  person  claiming ;  he  knew  that  the 
only  reason  the  company  alleged  for  not  paying  was,  that  she  was 
making  an  adverse  claim,  and  therefore  a  bona  fide  litigation  by  him 
oueht  to  have  included  Mrs.  Black  as  a  party  to  his  suit.  Certainly 
the  existence  of  that  suit  did  not  stand  in  the  way  of  the  Plaintiffs 
filing  a  bill  of  interpleader. 

Then  it  was  said  that  the  order  ought  not  to  have  stayed  the  prose- 
cution of  that  other  suit.  At  first  I  was  disposed  to  think  that  the 
course  of  the  Court  generally  is  to  leave  every  suit  in  equity  to  stand 
or  fall  upon  its  own  merits,  and  not  in  one  suit  to  grant  an  injunction 
to  stay  or  restrain  proceedings  in  another ;  but  the  case  of  Warington 
V.  Wheatstone  serves  to  shew  that  an  injunction  in  an  interpleader  suit 
may  extend  to  restrain  proceedings  in  equity  as  well  as  at  law  against 
the  stakeholder,  as  appears  from  the  decree  which  is  given  in  Seton  on 
Decrees,  (Vol.  2  p.  962,  3d  Ed.)  ;  and  the  case  of  Sieveking  v.  Behrens 
(2  My.  &  Cr.  581 ) ,  seems  to  have  been  to  the  same  effect.  I  am,  there- 
fore, not  able  to  say  that  the  order  for  the  injunction  was  in  any  respect 
wrong,  and  I  think  that  Thomas,  the  Plaintiff  in  the  other  suit,  having 
chosen  to  institute  that  suit,  it  was  right  to  bring  the  money  into  Court 
in  a  suit  to  which  Mrs.  Black  was  a  party,  and  to  restrain  all  other 
proceedings  in  the  matter.  I  think  there  is  nothing  inconsistent  with 
the  course  of  practice  to  say  that  the  injunction  should  extend,  as  the 
Vice-Chancellor  originally  extended  it,  to  stay  proceedings  in  equity 
as  well  as  at  law,  and  therefore  that  his  original  order  was  right. 


Ch.    9.)  BILLS   OF  INTEBPLEADEK.  137 


THE  CREDITS  GERUNDEUSE  LIMITED  v.  VAN  WEEDE. 

(Supreme  Court  of  Judicature,   1884,   12   Q.   B.   D.,   171.) 

Pollock,  B.  This  was  an  application  on  behalf  of  Van  Weede, 
who  is  defendant  in  an  action  at  the  suit  of  the  Credits  Gerundeuse, 
Limited,  for  leave  to  serve  a  copy  of  an  interpleader  summons  upon 
one  Don  Pedro  Jordi,  a  Spanish  subject  now  at  Gerona,  in  Spain.     .     , 

Mr.  Justice  Mathew  sitting  at  chambers  declined  to  make  the  order 
asked  for  upon  the  ground  that.  Jordi  being  a  foreign  subject  and 
resident  abroad,  this  Court  would  have  no  authority  to  enforce  any 
order  which  might  be  made  against  him.  The  matter  does  not  appear 
to  have  been  fully  argued  at  chambers,  nor  was  the  attention  of  the 
learned  judge  called  to  the  authorities. 

Had  Jordi  actually  commenced  an  action  in  this  Court  against  the 
defendant,  claiming  the  goods  or  their  value,  it  would  seem  clear  that 
the  Court  ought  to  make  the  order  asked  for  upon  the  ground  that 
Jordi,  when  seeking  to  avail  himself  against  the  defendant  of  the  juris- 
diction of  an  English  Court,  must  properly  be  held  to  be  amenable  to 
anv  order  which  the  Court  might  thinlc  right  to  make  with  a  view  of 
doing  substantial  justice  between  all  the  parties  before  it. 

It  would  seem  however  upon  principle  that  although  Jordi  is  not 
now  before  the  Court,  but  only  threatens  an  action  against  the  defend- 
ant, it  is  equally  reasonable  that  he  should  be  served  with  a  copy  of  the 
interpleader  order.  It  is  one  of  the  first  principles  of  all  judicature 
that,  wherever  there  is  a  dispute  as  to  the  right  to  property  or  its 
value,  all  the  parties  interested  therein  should  be  before  the  Court,  m 
order  that  the  matter  may  if  possible  be  finally  settled  and  complete 

justice  done. 

Now  in  the  present  case  the  Court  by  making  the  order  asked  for. 
does  not  assert  any  present  jurisdiction  over  Jordi.  or  propose  to  com- 
pel him  to  submit  to  its  process,  but  merely  gives  him  notice  of  the 
proceedings  which  arc  being  taken;  so  that  if  after  such  notice  he 
should  decline  to  submit  to  the  jurisdiction  of  tlie  Court,  and  allow  the 
rights  as  between  the  plaintiffs  and  defendant  to  be  determined  in  his 
absence,  anrl  hereafter  commence  an  action  against  the  defendant  in 
respect  of  the  identical  claim  nf)W  made  by  the  plaintifTs,  he  may  be 


J318  BILLS     OF    INTERPLEADER.  (Part    3 

barred  from  continuing  proceedings  which  would  be  harassing  upon 
the  defendant,  who  would  thereby  be  twice  vexed  for  the  same  cause. 
If  Jordi  has  a  good  claim,  as  he  asserts,  against  the  defendant,  he  is  not 
put  in  a  worse  position  by  prosecuting  it  now  instead  of  waiting  till 
the  action  by  the  defendant  is  determined. 

The  question  now  before  us  does  not  appear  to  have  arisen  often  in 
our  Courts.  Mr.  Barnes,  however,  cited  the  case  of  Stevenson  v. 
Anderson  (2  Y.  &  B.  407),  as  containing  the  high  authority  of  Lord 
Eldon  in  favour  of  the  view  we  have  taken.  The  defendant,  who  had 
ordered  goods  from  J.  &  J.  Goodall,  in  Scotland,  and  remitted  bills  to 
them  in  payment,  and  afterwards  was  sued  in  Scotland  by  a  creditor 
named  Dick,  who  had  attached  the  bills  in  the  hands  of  the  Goodalls, 
the  defendant  wrote  to  the  Goodalls  desiring  to  have  the  bills  returned, 
and  also  demanded  them  of  the  plaintifif  to  whom  they  had  been  sent 
to  procure  payment  of  them.  On  his  refusing  to  deliver  them  up,  the 
defendant  commenced  an  action  of  trover  against  the  plaintifif.  The 
plaintiff  then  filed  his  bill,  praying  that  the  defendants,  the  Goodalls 
and  Dick,  who  were  out  of  the  jurisdiction,  might  interplead  as  to  the 
bills,  and  for  an  injunction.  This  bill  was  sustained  on  demurrer ;  and, 
in  giving  judgment.  Lord  Eldon  fully  explained  the  grounds  upon  which 
the  jurisdiction  of  th-e  Court  rested,  as  follows:  "It  was  objected  that 
the  Goodalls  and  the  attaching  creditor  are  out  of  the  jurisdiction ;  and 
as  there  is  only  one  creditor  within  the  jurisdiction,  a  bill  of  interpleader 
cannot  be  filed.  Upon  the  authorities  that  proposition  cannot  be  main- 
tained, as  a  person  out  of  the  jurisdiction  may  threaten  and  bring 'an 
action,  and,  though  he  should  never  come  within  the  jurisdiction,  there 
is  a  familiar  mode  of  concluding  him.  The  plaintiff  is  bound  to  bring 
all  persons  into  the  field  to  contend  together.  That  rests  upon  him. 
I  have  had  occasion  to  consider  that  with  reference  to  persons,  not  re- 
siding in  Scotland,  but  foreigners;  and  the  opinion  I  formed  upon  it 
without  any  difficulty  or  the  aid  of  a  precedent,  which  I  could  not  find, 
though  there  is  precedent  enough  of  willing  defendants,  is  that  the 
plaintiff  in  a  bill  of  interpleader  against  persons  within  and  without 
the  jurisdiction  is  bound  to  bring  them  all  within  the  jurisdiction  in  a 
reasonable  time;  if  he  does  not,  the  consequence  is  that  the  only  person 
within  the  jurisdiction  must  have  that  which  is  represented  to  be  the 
subject  of  competition;  and  the  plaintiff  must  be  indemnified  against 
those  who  are  out  of  the  jurisdiction  when  they  think  proper  to  come 


Cll.    9.)  BILLS   OF  INTEEPLEADER.  13'J 

within  it  and  sue  either  at  law  or  in  this  Court.  If  the  plaintiff  can 
shew  that  he  has  used  all  due  diligence  to  bring  persons  out  of  the 
jurisdiction  to  contend  with  those  who  are  within  it,  and  they  will  not 
come,  the  Court  upon  that  default  and  their  so  abstaining  from  giving 
him  the  opportunity  of  relieving  himself,  would,  if  they  afterwards 
came  here  and  brought  an  action,  order  service  on  their  attorney  to  be 
good  service,  and  in  join  that  action  for  ever;  not  permitting  those 
who  refused  the  plaintiff  that  justice  to  commit  that  injustice  against 
him." 

In  a  modern  case,  East  and  West  India  Dock  Co.  v.  Littledale,  (7 
Hare,  57),  some  of  the  parties  whom  it  was  sought  to  make  defendants 
in  an  interpleader  were  Parsee  merchants  resident  at  Bombay,  and  the 
same  objection  was  raised.  The  report  does  not  disclose  what  was 
said  upon  the  argument  or  in  the  judgment  upon  this  point.  It  is  clear, 
however,  that  it  was  brought  to  the  attention  of  the  Court,  and  also 
that  the  Vice  Chancellor  (Sir  James  Wigram)  allowed  the  order  to 

go.     .     .     . 

Upon  this  state  of  the  authorities,  and  for  the  reasons  already  given, 
we  think  t*hat  the  present  application  should  be  granted.  It  is  only  for 
leave  to  serve  the  summons,  and  it  will  be  open. to  Jordi  to  raise  any 
point  after  he  is  served.  As,  however,  the  question  is  of  some  im- 
portance as  affecting  the.  practice  in  interpleader,  we  have  thought  it 
right  to  deal  with  it  fully.    Application  granted. 


BYERS  V.  vSANSOM-THAYER  COMMISvSION  CO. 

(Illinois  Appellate  Court,  1004,  111  Til.  App.  575.) 

Mr.  Justice;  Ball.  .  .  .  The  rule  seems  to  be  (although  there 
are  many  well  considered  cases  in  England  and  in  this  country  to  the 
contrary,  (Wells  v.  Miner,  25  Fed.  K.  538;  Crane  v.  McDonald.  118 
N.  Y.  654),  that  the  same  debt,  duty  or  thing  must  lie  severally  claim- 
ed by  the  defendants  from  the  plaintiff  by  virtue  of  a  title  dependent 
upon  or  derived  from  a  common  source. 

In  the  case  at  bar  each  of  the  defendants  originally  claimed  the 
cattle  which  appellants  sold  upon  the  Chicago  market.  Now  they 
severally  assert  the  right  to  tlic  money  realized  from  that  sale.     The 


140  BILLS     OF    INTERPLEADER.  (Pai't    o 

herd  of  cattle  is  the  common  source  of  title.  Hence  each  and  all  of  the 
defendants  claim  the  same  thing  from  appellants  by  virtue  of  the  same 
title.  The  establishment  of  the  title  of  one  class  of  these  defendants 
Avill  extinguish  that  of  the  other  class. 

The  objections  set  forth  in  the  first,  second  and  third  special  grounds 
of  demurrer  may  be  reduced  to  one,  namely :  that  the  claims  of  the 
other  defendants,  as  stated  in  the  bill,  do  not  show  their  right  to  compel 
the  demurring  defendants  to  interplead  with  them. 

The  objection  is  without  merit.     Appellants  cannot  be  presumed  to 
know  all  the  facts  upon  which  the  several  defendants  claim  this  money ; 
and  they  are  therefore  not  required  to  set  forth  in  detail  the  alleged 
title  of  any  of  them.    A  bill  of  interpleader  proceeds  upon  the  ground 
that  the  complainant  from  ignorance  of  the  rights  of  the  several  de- 
fendants, is  unable  to  ascertain  to  which  of  the  defendants  he  is  to 
account.     Shaw  y.  Coster,  8  Paige,  339,  347 ;  Briant  v.  Reed,  14  N.  J. 
Eq.  271,  277;  State  Ins.  Co.  v.  Gennett.  2  Tenn.  Ch.  82.     Appellants 
were  not  called  upon  to  decide  disputed  questions  of  fact,  nor  to  re- 
solve doubtful  points  of  law,  under  the  penalty  of  dismissal  of  their 
bill.    Having  stated  their  danger,  in  this,  that  opposing  claims  are  made 
as  to  the  money,  their  indifference  as  between  the  several  defendants, 
and  their  willingness  to  pay  the  money  to  the  one  entitled  thereto,  they 
have  done  all  that  is  required  of  them.     Supreme  Lodge  v.  Roddatz, 
57  111.  App.  119;  Morrell  v.  Manhattan,  183  111.  268. 

The  primary  object  of  such  a  bill  is  to  protect  the  stakeholders  from 
a  double  vexation  in  respect  of  one  fund,  duty  or  thing.  For  this 
liability  the  law  furnishes  no  adequate  remedy;  and  hence  arises  the 
jurisdiction  of  a  court  of  equity,  without  which  that  court  would  lack 
the  power  to  do  justice.  Newhall  v.  Kastens,  70  111.  159;  Crane  v.  Mc- 
Donald, 118  N.  Y.  654. 

At  the  present  stage  of  this  case  the  objection  that  the  appellants 
are  not  indifferent  as  between  the  defendants  is  fully  met  and  over- 
come by  the  allegation  in  the  sworn  bill  that  they  "do  not  in  any  re- 
spect collude  with  either  of  said  defendants  touching  the  matters  in 
controversy  in  this  case;  nor  have  they  exhibited  this  bill  of  inter- 
pleader at  the  request  of  defendants,  or  either  of  them,  but  of  their 
own  free  will,  and  to  avoid  being  molested,  vexed  and  harassed  touch- 
ing the.  matters  contained  therein."  The  defendants  demurred  to  the 
bill,  thereby  admitting  the  truth  of  this  allegation.     Further,  the  chan- 


Ch.    9.)  BILLS   OF  INTERPLEADER.  14 1 

eery  practice  requires  the  complainant  to  file  an  affidavit  with  his  bill, 
stating  that  there  is  no  collusion  between  him  and  any  of  the  parties. 
If  the  bill  containing  the  same  allegation  is  verified  (as  in  the  case 
here),  the  rule  is  complied  with.  The  court  gives  credit  to  the  affidavit, 
and  will  not  permit  evidence  to  be  adduced  to  contradict  it.  2  Dan. 
Chy.  PI.  &  Pr.  1563,  and  cases  cited  in  note  5. 

In  Stevenson  v.  Anderson,  2  Ves.  &  Beames,  Lord  Chancellor  Eldon 
said :  "Though  I  doubt  whether  there  is  perfect  bona  fides  on  the  part 
of  the  plaintiff,  I  find  it  decided  that  the  court  is,  in  the  first  instance, 
concluded  bv  his  affidavit  that  there  is  no  collusion,  and  will  not  admit 
an  affidavit  to  the  contrary." 

The  final  objection  is  that  as  appellants  are  the  agents  of  Hardin  & 
Smith,  they  owe  a  duty  to  them  which  cannot  be  determined  in  this 
proceeding. 

The  doctrine  is  well  settled  that  if  it  appears  the  complainant  is 
under  a  personal  obligation  to  one  of  the  defendants  in  respect  to  the 
duty  or  thing  in  contest,  so  that  the  litigation  among  the  defendants 
under  the  bill  will  not  determine  that  obligation,  the  bill  must  be  dis- 
missed. This  doctrine  flows  naturally  and  necessarily  from  the  nature 
of  a  bill  of  interpleader. 

In  Crawshay  v.  Thornton,  2  Myl.  &  C.  1,  complainants,  who  were 
wharfingers,  received  a  quantity  of  iron  from  a  third  person,  with 
orders  to  deliver  it  to  Thornton;  and  they  WTOte  the  latter  that  they 
held  it  subject  to  his  orders.  Thereafter,  Daniloff  claimed  to  own  the 
iron,  asserting  that  the  person  who  delivered  it  to  complainants  was 
his  agent,  without  authority  to  dispose  of  it.  Complainants  filed  a  bill 
of  interpleader  making  Thornton  and  Danilofl^  defendants.  Lord 
Cottenham  held,  in  efifect,  that  what  had  taken  place  between  com- 
plainants and  Thornton  amounted  to  an  independent  contract  which 
could  not  be  decided  under  the  bill. 

"If  the  plaintiffs  have  come  under  any  personal  obligation  in- 
dependently of  the  question  of  property,  so  that  either  of  the  defend- 
ants may  recover  against  them  at  law  without  establishing  a  right  to 
the  property,  it  is  obvious  that  no  litigation  between  the  defendants 
can  ascertain  their  respective  rights  as  against  the  plaintiffs." 

Hence,  the  appeal  from  the  decree  of  the  vice-chancellor  sustaining 
a  demurrer  to  the  bill  was  dismissed. 


142  BILLS     OF    INTERPLEADER,  (Part    i> 

In  Mitchell  v.  N.  W.  M.  &c.  Co.,  26  111.  App.  295,  the  complainant, 
before  he  filed  his  bill  of  interpleader,  had  so  answered  a  garnishee 
summons  that  he  thereby  incurred  a  legal  liability  to  one  of  the  de- 
fendants to  which  he  was  bound  to  respond  at  all  events.  Therefore 
his  bill  was  dismissed. 

Appellants  are  commission  merchants,  engaged  in  business  at  the 
Union  Stock  Yards,  Chicago.  The  relation  between  them  and  Hardin 
&  Smith,  who  shipped  the  cattle,  is  that  of  bailor  and  bailee.  No  other 
personal  obligation  rests  upon  them  except  that  which  grows  out  of  the 
receipt  of  and  the  sale  of  the  cattle. 

Lord  Cottenham,  in  Crawshay  v.  Thornton,  supra,  held  that  in  case 
of  a  simple  bailment  "there  is  no  personal  undertaking  and  no  liability 
or  right  of  action  beyond  that  which  arises  from  the  legal  consequences 
of  the  bailment." 

A  commission  merchant  to  whom  goods  have  been  consigned  for  sale, 
and  who  claims  no  interest  in  the  proceeds  after  deducting  his  costs 
and  charges,  may  file  a  bill  of  interpleader  based  upon  the  adverse 
claims  of  the  receiver  of  the  consignor's  property  and  of  an  attaching 
creditor  of  such  consignor.     Pope  v.  Ames,  20  Oregon,  199. 

An  agent  who  receives  the  money  of  his  principal  will  hold  the  same 
in  trust,  and  will  be  held  to  account  for  the  same  as  trustee ;  but  the 
debt  due  from  a  factor  or  commission  man  for  the  proceeds  of  goods 
sold  for  his  principal  is  not  a  fiduciary  debt.     Svanoe  v.  Jurgens,  144 

111.  514. 

This  distinction  is  noted  in  Cooper  v.  De  Tastel,  1  Taunt.  177, 
where  it  is  held  that  where  goods  were  deposited  with  a  warehouse- 
man not  as  warehouseman,  but  as  a  private  agent,  he  could  not  main- 
tain a  bill  of  interpleader. 

It  seems  that  the  mere  fact  that  a  contract  relation  existed  be- 
tween appellants  and  Hardin  &  Smith,  by  the  terms  of  which  the 
former  were  bound  to  pay  the  proceeds  of  the  sale  to  the  latter,  does 
not  necessarily  deprive  appellants  of  the  right  to  file  a  bill  of  inter- 
pleader.   Bechtel  v.  Shaefer,  117  Penn.  St.  555. 

In  many  of  the  text  books,  and  also  in  some  of  the  cases,  it  is  stated 
that  the  bailee  cannot  file  a  bill  of  interpleader  against  the  bailor  and  a 
third  person  claiming  title ;  yet  in  every  case  to  which  we  have  been 
referred,  or  which  we  have  found,  wherein  that  statement  is  made,  it 
is  either  dictum,  or  the  facts  show  a  personal  obligation  upon  the 


Ch.    9.)  BILLS   OF  INTERPLEADER.  14o 

part  of  the  complainant  to  one  or  more  of  the  defendants  outside 
of  that  which  arises  solely. from  the  legal  consequences  of  the  hail- 
ment. 

In  Platte  \^alley  Bank  v.  Nat'l  Bank,  155  111.  250,  Halsey  deposited 
with  the  National  Live  Stock  Bank  the  sum  of  $5,963.18,  to  be  credited 
to  the  Platte  Valley  Bank,  and  to  be  paid  to  the  latter  bank  upon  a 
draft  to  be  drawn  by  it.  The  former  bank  notified  the  latter  bank  of 
the  deposit.  Before  the  Platte  Valley  Bank  had  drawn  this  money 
an  Omaha  bank  notified  the  National  Live  Stock  Bank  that  it  claimed 
the  fund  as  the  proceeds  of  certain  cattle  owned  by  Halsey,  by  him 
mortgaged  to  the  Omaha  bank,  and  then  by  him  wrongfully  converted 
without  its  knowledge  or  consent,  and  that  the  Platte  Valley  Bank  had 
notice  of  such  wrongful  conversion.  It  was  held  that  a  bill  of  in- 
terpleader filed  by  the  National  Live  Stock  Bank,  making  the  contesting 
banks  and  Halsey  defendants,  could  be  maintained.  The  facts  in  that 
case  are  quite  similar  to  those  in  the  one  at  bar.  But  it  is  not 
necessary  to  a  decision  of  this  case  that  we  should  hold  that  a  com- 
mission merchant  who  has  taken  upon  himself  no  other  obligation 
than  that  which  arises  from  the  receipt  of  the  goods  consigned  to  him, 
may  file  a  bill  of  interpleader  when  the  title  to  such  goods  or  the  title 
to  their  proceeds  is  claimed  by  a  third  party.     .     .     . 


RAUCH  V.  FT.  DEARBORN  NAT.  BK. 

(Supreme  Court  of  Illinois,  1906,  223  111.  507,  79  N.  E.  273.) 

Mr.  Chief  Justice  Scott.  .  .  .  The  first  requisite  of  a  bill  of 
interpleader  is,  that  it  must  show  that  the  defendants  are  claiming 
the  same  debt,  duty  or  thing  from  the  complainant.  (Cogswell  v. 
Armstrong,  77  111.  139;  Platte  Valley  Bank  v.  National  Live  Stock 
Bank,  155  id.  250;  Morrill  v.  Manhattan  Life  Ins.  Co.  183  id.  260.) 
Appellants  contend  that  the  bill  in  this  case  is  fatally  defective  be- 
cause it  does  not  show  that  they  are  claiming  the  same  debt  or  duty 
that  is  claimed  by  Rein  or  the  drawee  banks.  It  is  therefore  necessary 
to  determine  what  is  claimed  by  the  respective  defendants  to  the  bill. 

Under  Rein's  contention  that  the  endorsements  on  the  checks  were 
authorized  or  ratified  by  Rauch  &  Co.  appellee  occupies  the  position 


144  BILLS     OF    INTEEPLEADER.  (Part    3 

of  debtor  towards  Rein,  (Woodhouse  v.  Crandall,  197  111.  104,)  and 
Rein  is  claiming  a  debt  from  appellee  which  was  created  by  depositing 
the  checks  and  receiving  credit  therefor  upon  his  deposit  account. 
Under  appellants'  contention  that  the  endorsements  were  forged,  the 
drawee  banks  stand  in  the  relation  of  debtors  to  appellants,  (Munn  v. 
Burch,  25  111.  35;  Gage  Hotel  Co.  v.  Union  Nat'l  Bank,  171  id.  531 ;) 
and  appellants  are  claiming  debts  from  the  drawee  banks  which  were 
created  by  a  demand  for  the  payment  of  checks  drawn  by  depositors 
of  those  banks,  payable  to  the  order  of  appellants.  The  defendant 
banks  are  not  claiming  any  debt  from  appellee,  but  a  duty  to  defend 
the  suits  brought  against  them  by  appellants  and  a  liability  on  the 
part  of  appellee  to  reimburse  the  defendant  banks  for  such  sums  as 
they  may  be  required  to  pay  in  satisfaction  of  judgments  rendered 
in  those  suits  on  account  of  the  eight  checks  in  question. 

The  bill  does  not  allege  that  appellants  are  asserting  any  claim 
whatever  against  appellee  for  any  debt,  duty  or  other  thing.  So  far  as 
appellants  are  concerned,  appellee  is  a  perfect  stranger  to  the  trans- 
action through  which  appellants  claim  the  debts  against  the  drawee 
banks,  and  the  fact  that  the  drawee  banks,  relying  upon  the  endorse- 
ments of  appellee's  name  on  the  checks,  have  paid  over  to  the  appellee 
the  money  called  for  by  those  checks  and  are  preparing  to  enforce  the 
liability  against  appellee  upon  those  endorsements  in  case  recovery 
is  had  upon  the  checks  in  the  suits  brought  against  them  does  not 
change  the  nature  of  the  appellant's  demand  against  the  drawee  banks, 
nor  substitute  the  liability  of  appellee  for  that  of  the  drawee  banks 
upon  the  debts  claimed  by  appellants.  First  Nat'l  Bank  v.  Pease, 
168  111.  40. 

It  is  therefore  apparent  that  appellants  are  not  claiming  the  same 
debt,  duty  or  other  thing  that  is  claimed  by  Rein  or  by  the  drawee 
banks,  and  the  bill  is  in  this  respect  fatally  defective  as  a  bill  of  inter- 
pleader. 

Appellee  urges,  however,  that  the  bill  can  be  maintained  upon  the 
theory  that  the  appellants  have  a  cause  of  action  against  it  if  the 
endorsements  of  the  firm  name  on  the  checks  were  forged.  Any  right 
of  action  that  appellants  may  have  against  appellee  arises  from  the 
fact,  if  it  be  a  fact,  that  they  never  transferred  the  title  to  the  checks 
to  any  one,  and  when  appellee  surrendered  the  checks  to  the  drawee 
banks  and  received  the  proceeds  thereof  the  transaction  was  an  unlaw- 


Ch.    9.)  BILLS   OF  INTERPLEADER,  14o 

ful  conversion  of  appellants'  property,  for  which  they  might  main- 
tain an  action  of  trover  against  the  appellee,  or  might  waive  the  tort 
and  bring  suit  in  assumpsit  for  money  had  and  received  for  their  use. 
Talbot  V.  Bank  of  Rochester,  1  Hill,  (N.  Y.)  295;  Robinson  v.  Chemi- 
cal Xat'l  Bank,  86  N.  Y.  404. 

Manifestly,  when  one  person  is  claiming  a  debt  arising  out  of  con- 
tract and  another  damages  arising  out  of  a  tort,  both  are  not  claiming 
the  same  debt,  duty  or  thing.  Thus,  in  Willard's  Equity  Jurisprudence, 
318,  it  is  said:  "Suppose  the  vendee  of  goods  should  be  sued  by  the 
vendor  for  the  price  and  by  a  third  person  claiming  a  right  paramount 
to  that  of  the  vendor.  Here  it  is  obvious  that  a  bill  of  interpleader  will 
not  lie,  because  one  of  the  claimants  merely  seeks  to  enforce  a  con- 
tract and  the  other  claims  as  for  an  unlawful  conversion.  (Slaney  v. 
Sidway,  14  Mees.  &  Welsh.  800.)     .     .     . 

On  the  same  principle,  where  a  party  having  purchased  a 
rick  of  hay  from  an  executor  de  son  tort  was  threatened  with  a  suit 
from  the  rightful  administrator  of  the  same  estate  and  payment  de- 
manded, he  was  held  not  to  be  entitled  to  maintain  a  bill  of  inter- 
pleader or  to  have  relief  under  the  Interpleader  act.  As  actual 
purchaser  he  was  liable  on  his  express  contract  unless  he  could  defend 
the  action.  To  the  rightful  administrator  he  was  liable  only  in  tort 
for  the  conversion.  Though  the  property  claimed  was  the  same,  the 
duty  or  obligation  was  different. — James  v.  Pritchard,  7  Mees.  & 
Welsh.  216;  Glyne  v.  Duesbury,  11  vSim.  139." 

Moreover,  the  authorities  seem  to  be  uniform  upon  the  proposition 
that  a  bill  of  interpleader  cannot  be  sustained  where  the  complainant 
is  obliged  to  admit,  or  where  it  appears,  that  as  to  either  of  the  de- 
fendants he  is  a  tort  feasor.  11  Ency.  of  PI.  &  Pr.  457;  Willard's 
Eq.  Jur.  320;  Beach  on  Modern  Eq.  Pr.  sec.  143;  2  Daniell's  Ch.  Pr. 
(5th  ed.)  1566;  Maclennan  on  Interpleader,  60;  Conley  v.  Insurance 
Co.  67  Ala.  472;  Mount  Holly,  etc.  Co.  v.  Feree,  17  N.  J.  Eq.  117. 

As  hereinbefore  stated,  appellants  are  not  making  any  claim  against 
appellee.  They  have  instituted  suits  against  the  drawee  banks  upon 
the  checks,  and  seek  to  recover  from  them  in  actions  ex  contractu 
on  the  theory  that  the  endorsements  of  their  firm  name  upon  the 
checks  were  forged  or  unauthorized.  We  are  of  the  opinion  that 
where  a  person  has  a  cause  of  action  against  one  upon  a  contract 
and  against  another  for  a  tort,  and  the  satisfaction  of  a  judgment 
3  Eq— 10 


146  BILLS     OF    INTERPLEADER.  (Part    3 

against  either  upon  the  cavise  of  action  against  him  would  be  a  bar  to 
the  enforcement  of  the  cause  of  action  against  the  other,  a  court  of 
equity  is  without  power  to  compel  such  person  to  relinquish  his  claim 
and  abandon  his  suit  against  the  one  liable  upon  the  contract  and 
require  him  to  proceed  against  the  one  liable  for  the  tort.  This,  in 
efifect,  is  what  appellee  is  attempting  to  accomplish  in  this  suit.  It  is 
asking  that  appellants  may  be  enjoined  from  prosecuting  their  suits 
against  the  drawee  banks  upon  contracts  and  be  compelled  to  liti- 
gate their  right  to  recover  against  appellee  for  a  tort. 

In  our  judgment  a  bill  of  interpleader,  for  the  reasons  stated, 
cannot  be  maintained  against  appellants  under  the  facts  disclosed 
by  the  bill,  and  the  demurrer  should  therefore  have  been  sustain- 
ed. 


COOK  V.  EARL  OF  ROSSLYN. 

(In  .Chancery,  1859,  1  Giff.  167.) 

The;  Vice  Chance;llor:  By  the  general  rule  of  the  Court,  which 
is  so  convenient  that  it  should  be  strictly  observed,  a  tenant  is  not 
entitled  to  maintain  a  bill  of  interpleader  against  his  landlord. 

Lord  Rosslyn,  in  the  case  of  Dungey  v.  Angrove  (2  Ves.  303-4), 
laid  down  the  rule  in  these  terms :  "The  only  case  in  which  a  tenant 
can  come  into  this  court  by  an  interpleader  bill  is,  where  the  lessor 
has  done  some  act  himself  that  embarrasses  the  tenant,  which  is  the 
case  of  a  mortgage;"  that  means,  by  a  mortgage  granted  after  the 
lease.  And  at  page  307,  he  says,  "While  the  tenant  is  bound  by  contract 
to  pay  to  Angove"  (that  is,  the  lessor),  "Hernal  (the  mortgagee)  may 
eject  him,  and  may  bring  an  action  for  use  and  occupation,  but  he  never 
can  for  the  rent.  This  is  a  different  demand.  The  parties  inter- 
pleading must  each  in  supposition  have  a  right  to  the  same  demand." 
Such  is  the  rule  as  stated  by  Lord  Rosslyn. 

Lord  Eldon,  in  deciding  the  case  of  Cowtan  v.  Williams  (9  Ves. 
jun.  107),  had  to  consider  the  right  of  a  tenant  to  file  a  bill  of  inter- 
pleader against  his  landlord.  The  Attorney-General,  for  the  defendant, 
insisted  that  the  tenant  could  not  file  a  bill  of  interpleader  against  his 
landlord.     Mr.  Romilly,  for  the  plaintiff,  distinguished  this  as  a  case 


Cll.    9.)  BILLS   OF  INTERPLEADER.  147 

of  exception,  where  the  question  arises  from  the  act  of  the  landlord, 
subsequent  to  the  lease.  Lord  Eldon  concurred  in  that  distinction, 
and  mentioned  "Lord  Thomond's  case,  in  which  a  bill  of  interpleader 
was  filed  by  tenants  against  their  landlord  and  persons  claiming  an- 
nuities granted  subsequently  to  the  lease;  and  the  bill  was  supported 
by  Sir  Thomas  Sewell,  the  tenant  being  by  the  act  of  the  lessor  en- 
tangled in  a  question  which  he  could  never  settle." 

In  the  present  case,  the  legal  estate  is  in  mortgagees,  who  con- 
curred in  the  demise  executed  by  Mr.  Walrond,  in  exercise  of  a  power. 
The  title  of  the  plaintifif  is  derived  under  the  mortgagees  and  under 
Mr.  Walrond,  but  with  a  covenant  upon  the  part  of  the  plaintiff  to  pay 
the  rent  to  Mr.  Walrond,  unless  it  shall  be  demanded  by  the  mortgagees. 
It  is  said,  however,  that  notwithstanding  this  stipulation.  Lord  Rosslyn 
was  a  trustee ;  that  the  plaintiff's  having  notice  of  Lord  Rosslyn's  title, 
whether  it  be  a  mere  equitable  title  or  not,  yet,  having  notice  of  it 
when  he  is  applied  to  by  Lord  Rosslyn  as  well  as  by  Mr.  Walrond  to 
pay  his  rent,  he  is  entitled  to  file  a  bill  of  interpleader,  and  to  call  upon 
this  Court  to  determine  which  of  these  two  defendants  are  entitled. 

But  the  rule  is  plain,  that  no  tenant  has  a  right  to  file  a  bill  of  in- 
terpleader in  any  such  case.  The  principle  of  the  rule  seems  to  be, 
that  if  one  party  by  a  deliberate  covenant  with  another  engage  to  pay 
a  sum  of  money,  and  that  other  person  has  not  by  any  dealing  of  his 
own  entangled  his  right  to  recover  that  money  so  secured,  it  is  not 
competent  to  the  covenantor,  on  the  ground  that  a  claim  is  made  by 
some  person  asserting  a  paramount  title,  to  file  a  bill  of  interpleader  in 
this  court.     Here,  knowing  the  state  of  the  title,  the  tenant  chose  to 

* 

take  possession  from  those  who  had  the  legal  estate  by  an  arrange- 
ment between  the  trustees  and  Mr.  Walrond,  who  is  the  donee  of  the 
power,  that  the  rent  should  be  paid  under  his  covenant  to  Mr.  Walrond. 
until  the  other  parties,  of  whom  Lord  Rosslyn  was  not  one,  should 
th.ink  fit  to  give  any  other  direction.     .     .     . 


LUND  v.  SEAMEN'S  BANK  FOR  SAVINGS. 

(Supreme  Court  of  New  York,  18C,2,  37  Barb.  139.) 

The  plaintiff  alleged  in  the  complaint  that  the  defendant  was  and 
is  a  corporation  duly  created  under  the  laws  of  the  state  of   New 


148  BILLS     OF    INTERPLEADER.  (Part    3 

York.  That  on  or  about  the  seventeenth  day  of  March,  1860,  Anders 
Larsson  deposited  with  the  defendant  the  sum  of  twenty -two  hundred 
dollars,  which  sum  the  defendant  promised  and  agreed  to  repay  to 
said  Larsson  personally,  or  on  his  order  in  writing,  and  upon  the  pro- 
duction of  the  book  delivered  by  the  defendant  to  said  Larsson  at  the 
time  such  deposit  was  made,  numbered  81,342,  and  in  which  the 
amount  of  such  deposit  was  entered  to  the  credit  of  said  Lars- 
son.    .     .     . 

By  the  Court,  LivONARD,  J.  .  .  .The  demurrer  to  the  second 
defense  presents  an  entirely  different  question.  The  plaintiff  is  the 
assio-nee  of  a  depositor  in  the  defendant's  bank.  The  defendant 
alleges  that  the  deposit  is  the  proceeds  of  sundry  securities  belonging 
to  Pehr  Erik  Larsson  and  others,  which  the  depositor  obtained  and 
fraudulently  converted  into  money,  and  that  Pehr  Erik  Larsson  &c. 
have  notified  the  defendant  of  these  facts,  and  that  they  claim  the 
deposit  as  their  property. 

It  must  be  conceded  on  authority,  as  insisted  by  the  defendant,  that 
the  claim  of  the  depositor  is  a  chose  in  action  and  not  a  bailment. 
(Chapman  v.  White,  2  Seld.  412,  417.  Downes  v.  The  Phoenix  Bank, 
6  Hill,  279.)  The  rule  which  forbids  a  bailee  to  deny  the  title  of  his 
bailor  is  not  applicable.  No  principle  of  law  can  however  be  found 
which  permits  a  debtor  for  goods  sold,  or  for  money  lent  or  deposited, 
to  set  up,  as  a  defense  against  the  claim  of  his  creditor,  that  his  title 
to  the  goods  sold,  or  money  lent  or  deposited,  is  defective  or  wrong- 
ful. That  question  is  of  no  concern  to  the  purchaser  or  borrower, 
unless  the  third  party  who  claims  to  have  been  despoiled  of  his  goods 
or  money  will  proceed,  by  process  of  law  to  enforce  his  rights.  It 
can  never  be  permitted  that  a  debtor  may  volunteer,  by  plea  or  answer, 
the  protection  of  the  claims  of  those  with  whom  he  has  had  no  deal- 
ings, to  defeat  his  liability  for  the  performance  of  his  contracts. 

The  law  forbids  the  defendant  to  interplead,  because  these  third 
parties  are  not  in  privity  with  the  depositor,  but  were  claiming  by  a 
hostile  and  superior  title.  Fletcher  v.  Troy  Saving  Bank,  14  How. 
Pr.  R.  383;  Shaw  v.  Coster,  8  Paige,  343;  Marvin  v.  Elwood,  11  id. 

365.) 

It  would  be  a  mere  evasion  to  permit  the  defendant  to  interpose 
such  rights  of  third  parties  as  a  defence,  which  they  are  prohibited 
from  alleging  as  grounds  for  an  interpleader.  The  pretended  claimants 


Ch.    9.)  BILLS   OF  INTERPLEADEK.  140 

have  shown  no  wish  to  enforce  their  claims  against  the  depositor,  if 
any  they  have.     .     .     . 


WELLS  FARGO  &  CO.  v.  MINER. 

(United  States  Circuit  Court,  1885,  25  Fed.  533.) 

Sawyer,  J.  This  is  an  apphcation  for  a  preHminary  injtmction, 
in  a  suit  on  the  equity  side  of  the  court,  brought  by  the  banking-house 
of  Wells,  Fargo  &  Co.  against  Richard  S.  Miner,  Frank  Silva,  and 
the  Southern  Development  Company  of  Nevada,  to  compel  them  to 
interplead  with  one  another  respecting  a  certain  certificate  of  deposit, 
for  $7,500,  which  was  issued  by  complainant  to  defendant  Silva. 
From  the  papers  used  on  the  hearing,  it  appears  that  Silva  sold  a 
mining  claim  to  the  Southern  Development  Company  for  an  agreed 
price  of  $10,000,  and  received  in  payment  a  check  for  that  amount  on 
the  Bank  of  California.  Silva  deposited  the  check  with  the  banking 
house  of  Wells,  Fargo  &  Co.,  who  thereupon  paid  him  $2,500  in  coin, 
and  issued  to  him  a  certificate  of  deposit  for  $7,500,  "payable  to 
Frank  Silva,  or  order,  on  return  of  this  certificate  properly  in- 
dorsed." By  mesne  assignments,  before  maturity,  the  certificate  came 
into  the  possession  of  the  defendant  Miner,  who  now  claims  to  be  the 
owner  and  holder  thereof ;  but  he  is  alleged  by  the  Southern  Develop- 
ment Company  not  to  be  a  holder  in  good  faith.  The  vSouthern 
Development  Company  claims  that  in  the  sale  of  the  mine  vSilva  made 
certain  false  and  fraudulent  representations  as  to  its  character  and 
value,  upon  which  it  relied,  and  by  reason  thereof  it  is  entitled  to  re- 
scind the  sale,  and  recover  back  everything  of  value  which  it  paid 
to  Silva.  Accordingly,  before  any  presentation  of  said  certificate  for 
payment,  the  Southern  Development  Company  notified  Wells,  Fargo 
&  Co.  that  the  check  on  the  Bank  of  California  had  been  obtained  by 
Silva  bv  means  of  fraud,  misrepresentation,  and  deceit,  and  that  it 
claimed  the  certificate  in  question,  and  warned  them  not  to  pay  it  to 
Silva.  The  Southern  Development  Company  then  caused  Silva  to 
be  arrested  and  prosecuted  on  the  criminal  charge  of  obtaining  money 
under  false  pretenses;  but  the  jury  disagreed  on  the  trial,  and  there- 
upon the  district  attorney  dismissed  ibe  in  forma)  ion.  and  the  prisoner 


150  BILLS     OF    INTEEPLEADEE.  (Part    3 

was  discharged.  The  Southern  Development  Company  then  brought 
a  civil  action  against  Silva,  which  is  now  pending  in  this  court,  to  re- 
cover $15,000  damages,  alleged  to  have  been  suffered  by  reason  of 
the  fraudulent  misrepresentations  aforesaid,  of  which  suit  it  notified 
complainant.  It  also  brought  suit  against  Wells,  Fargo  &  Co.,  in  which 
neither  Silva  nor  Miner  was  made  a  party,  to  enjoin  the  payment  of 
the  certificate  until  the  determination  of  the  aforesaid  action  against 
Silva  for  $15,000  damages.  In  this  suit,  Wells,  Fargo  &  Co.  suffered 
a  default,  and  judgment  was  rendered  against  them  according  to  the 
prayer  of  the  complainant.  At  this  point.  Miner  presented  the  cer- 
tificate to  Wells,  Fargo  &  Co.  for  payment,  which  was  refused  on  the 
ground  that  they  had  been  enjoined,  and  thereupon  Miner  instituted 
an  action  at  law  on  the  certificate  against  Wells,  Fargo  &  Co.,  in  this 
court.  They  appeared  in  that  action,  and  made  a  motion,  under 
section  386  of  the  Code  of  Civil  Procedure  of  California,  that  the 
Southern  Development  Company  be  substituted  in  their  place  and 
stead  as  defendant.  This  motion  was  argued  elaborately,  and  denied 
by  the  district  judge  of  Nevada,  holding  the  circuit  court,  on  the 
ground  that  an  equitable  cause  of  suit  could  not  be  thus  injected  into 
an  action  at  law  in  the  United  States  courts.  Thereupon,  Wells, 
Fargo  &  Co.  instituted  the  present  suit  in  equity,  to  compel  the  de- 
fendants to  interplead,  and  they  now  move  for  a  preliminary  injunc- 
tion, restraining  the  prosecution  of  the  actions  against  them  respecting 
the  certificate  until  the  determination  of  the  rights  of  the  parties  upon 
an  interpleader.  They  offer  to  pay  the  money  into  court  for  the 
benefit  of  the  party  who  shall  be  adjudged  entitled  to  it.     .     .     . 

This  is  a  motion  for  an  injunction  to  restrain  the  prosecution  of 
those  suits  until  the  determination  of  the  rights  of  the  parties  on  the 
bill  for  interpleader.  The  defendants  do  not  deny  that  the  com- 
plainants are  entitled  to  the  injunction,  provided  the  case  is  a  proper 
one  for  a  bill  of  interpleader.  They  say  it  is  not  within  the  class 
of  cases  in  which  courts  of  equity,  under  the  chancery  practice  as  it 
heretofore  existed,  and  under  the  law  of  England,  have  interfered. 
Conceding  defendants  to  be  right  on  this  proposition,  it  is  still,  in 
my  judgment,  within  one  of  the  provisions  of  the  Code  of  Civil  Pro- 
cedure of  the  state  of  California,  provided  that  provision  is  applicable. 
Section  386,  among  other  things,  provides  as  follows :  "And  when- 
ever conflicting  claims  are  or  may  be  made  upon  a  person   for,   or 


Ch.    9.)  BILLS   OF  IXTERPLEADER.  151 

relating  to  personal  property,  or  the  performance  of  an  obligation, 
or  any  portion  thereof,  such  person  may  bring  an  action  against  the 
conflicting  claimants  to  compel  them  to  interplead,  and  litigate  their 
several  claims  among  themselves.  The  order  of  substitution  may  be 
made,  and  the  action  of  interpleader  may  be  maintained,  and  the 
applicant,  or  plaintiff,  be  discharged  from  liability  to  all  or  any  of  the 
conflicting  claimants,  although  their  titles  or  claims  have  not  a  com- 
mon origin,  or  are  not  identical, -hut  are  adverse  to  and  independent  of 
one  another." 

The  contention  here  is  that  these  claims  have  not  a  common  origin, 
are  not  identical,  that  there  is  an  independent  claim,  and  therefore  that 
they  are  not  within  the  original  chancery  jurisdiction.  If  this  clause  be 
applicable,  and  can  be  acted  upon  in  this  court,  it  abolishes  the  dis- 
tinction resting  upon  these  elements.  It  is  insisted,  on  the  part  of  the 
defendant  here,  that  the  statute  cited  is  not  applicable  to  the  United 
vStates  courts  of  equity,  as  the  Code  of  Procedure  does  not  apply  on 
the  equity  side  of  the  courts.  If  it  were  merely  a  provision  regulating 
procedure,  undoubtedly  it  would  be  so  ;  but  I  think  it  is  more  than  that. 
It  gives  a  right  to  a  party  in  equity.  It  enlarges  his  equitable  rights; 
it  enlarges  the  scope  of  his  remedy.  It  is  not  a  question  of  enlarging 
the  jurisdiction  of  the  court ;  it  gives  a  new  remedy, — a  new  right 
in  the  form  of  a  remedy.     .     .     . 

The  statute  gives  a  new  right,  and  if  this  case  does  not  come  within 
the  rule  before  established  by  courts  of  chancery  in  regard  to  the 
points  made,  I  think,  under  the  statute,  the  remedy  is  so  enlarged 
as  to  cover  the  case ;  and,  as  it  now  stands,  the  right  can  be  enforced 
in  a  court  of  equity  of  the  United  States.  The  statute  gives  a  new 
right, — an  enlargement  of  the  scope  of  the  remedy;  and,  it  being  a 
case  peculiarly  of  equitable  cognizance,  it  can  be  enforced  on  the 
equity  side  of  the  court.     .     .     . 

The  defendants  are  liable  on  that  certificate  either  to  the  develop- 
ment company  or  to  Miner.  They  are  not  liable  to  both.  They  do 
not  know  which.  That  is  the  very  thing  to  be  ascertained.  The 
doctrine  relied  on  to  deny  an  interpleader  is  that  announced  in  Craw- 
shay  V.  Thornton,  2  Mylnc  &  C.  1,  an  English  case,  decided  before 
the  present  system  of  practice  in  England  went  into  efTect.  It  is  very 
doubtful  in  my  mind  whether  that  doctrine  would  be  sustained  at  this 
time   even   in   England.      The   observations   of    a   number   of    English 


152  BILLS     OF    INTERPLEADEK.  (Part    3 

judges  made  subsequently  to  the  decision  of  that  case,  and  to  the 
change  of  the  law  by  statute,  indicate  that  they  repudiate  the  doctrine 
there  announced,  and  regard  the  grounds  on  which  the  distinction 
is  rested  as  being  very  narrow.  The  act  of  1860.  in  England,  like 
tiie  provisions  of  the  California  Code  of  Procedure  which  I  have  just 
read,  has  abolished  the  distinction  taken  in  that  case.  The  provision 
is  similar  to  our  statute.  I  presume  our  statute  was  adopted  from  the 
English  act  of  1860.  I  should  be  verv  much  disposed  to  hold  the 
case  to  be  a  proper  one  for  interpleader,  even  if  it  stood  on  the  ordinary 
principles  of  equity  jurisprudence  alone,  without  the  aid  of  this  act 
enlarging  the  equitable  rights  of  parties  in  such  cases.  At  all  events, 
I  am  satisfied  that  by  this  act  a  new  right  was  created,  broad  enough 
to  reach  the  case,  which  can  be  enforced  in  this  court. 

I  am  satisfied,  therefore,  that  it  is  a  proper  case  for  a  bill  of  inter- 
pleader, and  that  the  injunction  should  be  granted.  The  motion  is 
granted,  on  giving  security  in  the  sum  of  $10,000. 


OUINN  V.  PATTON. 

(Supreme   Court  of  North   Carolina,   1841,  37  N.  C.   (2  Ired.)  48.) 

RuPFiN,  C.  T-  .  •  •  As  to  the  principal  point,  the  case  falls 
directly  within  the  decision  made  a  year  ago  in  the  suit  of  the  present 
plaintiff  against  Green  and  others.  1  Ired.  Eq.  Rep..  229.  The  dif- 
ficulties of  the  plaintiff  arise  merely  on  his  official  duty  as  sheriff  and 
on  the  legal  priorities  between  the  several  defendants.  Questions  of 
that  kind  are  more  conveniently  raised  and  decided  at  law  than  in  this 
Court.  If  everv  adverse  pretention  to  preference  in  the  application  of 
an  insolvent's  property  among  his  creditors,  claiming  by  executions  or 
attachments,  would  authorize  the  sheriff  to  call  upon  the  creditors  to 
interplead,  a  judgment  would  seldom  be  satisfied  but  at  the  end  of  a 
suit  in  equity.  It  would  change  the  whole  jurisdiction,  and  the  courts 
of  law  would  in  but  few  cases  be  able  to  compel  the  sheriff  to  do  his 
duty  upon  the  process  issued  to  him.     .     .     . 


Ch.    9.)  BILLS   OF   I XTERPLEADER.  153 


OUINN  V.  GREEN. 

(Supreme   Court  of   North   Carolina,   1840,   1   Ired.   229.) 

RuFFix,  Chief  Justice.       The  plaintiff,  being  sheriff  of  Lincohi 
county,  received  a  writ  of  fieri  facias  for  $2,498.2v3,  with  interest  and 
costs,  recovered  by  the  defendant  Green  against  the  defendant  John- 
son, as  administrator  of  Timothy  Chandler,  deceased.     The  plaintiff 
placed  the  execution  in  the  hands  of  one  Maury,  one  of  his  deputies, 
who  seized  under  it  two  slaves,  which  were  found  in  the  possession  of 
the  defendant  Morris;  and  also  six  other  slaves,  and  some  cattle  and 
household  furniture,  which  were  found  in  possession  of  the  defendant 
Elizabeth  Chandler.     The  seizure  was  made  by  the  direction  of  the 
creditor  Green,  who  pointed  out  the  slaves  and  other  articles  to  the 
deputy  sheriff,  as  property  belonging  to  the  estate  of  Timothy  Chandler, 
derived  from  Elizabeth  Chandler  by  their  intermarriage  and  his  sub- 
sequent possession.     Morris,  alleging  the  two  slaves,  that  were  taken 
out   of   his  possession,   to   belong  to   hini   under   an   appointment   by 
Elizabeth  Chandler  under  a  power  in  the  will  of  one  Arthur  Graham, 
a  former  husband  of  the  said  Elizabeth,  instituted  an  action  of  detin  -- 
for  those  slaves  against  Maury  and  Green.     James  Graham,  as  ad- 
ministrator of   one  William  Graham,  deceased,    (who  was  a  son  of 
the  said  Arthur  Graham,  deceased,)     also  claimed  the  other  six  slaves, 
under  a  provision  in  the  will  of  the  father,  Arthur;  and  brought  an 
action  of  detinue  for  them  against  the  same  persons.     A  third  action, 
namely,  trespass,  was  brought  against  the  same  parties,  Maury  and 
Green,  by  Elizabeth  Chandler,  who  claimed  property  in  part  of  the 
slaves  and  other  articles  and  the   right  of  possession  of   the   whole, 
and  denied  that  any  part  was  of  the  estate  of  her  last  husband,  Tim- 
othy Chandler.     The  deputy  sheriff  delivered  all  the  effects  seized  to 
his  principal,  the  present  plaintiff;  and  he  was  required  by  the  creditor. 
Green,  to  proceed  to  a  sale,  and  also  by  Johnson,  the  .-iduiinislrator  of 
Timothy  Chandler,  who  insisted  that  the  slaves  and  otlier  things  did 
belong  to   the   estate   of    his    intestate.      The    sheriff    then    filed    this 
bill,  as  a  bill  of  interpleader,  against  Green,  Johnson,  administrator  of 
T.  Chandler,  and  against  the  plaintiffs  in  Ihc  three  actions  at  law,  that 


354  BILLS     OF    INTERPLEADER.  (Part    3 

is  to  say,  Morris,  James  Graham,  administrator  of  William  Graham,  and 
Elizabeth  Chandler;  in  which  he  acknowledges  the  possession  in  him- 
self of  all  the  property  seized  by  his  deputy,  and  submits  to  deliver 
to  either  or  any  of  the  defendants,  or  otherwise  to  dispose  of  it  as  of 
right  he  ought ;  and,  in  the  meanwhile,  prays  for  an  injunction  against 
further  proceedings  in  the  suits  already  brought  at  law,  and  also  to 
restrain  the  creditor.  Green,  from  taking  any  steps  at  law  to  compel 
him  to  sell,  or  amerce,  or  otherwise  punish  him  for  not  selling. 

To  this  bill  the  defendants  Green  and  Johnson,  administrator,  de- 
murred; and  the  other  defendants  put  in  answers,  setting  forth  the 
nature  of  their  respective  claims,  and  submitting  to  interplead  with 
the  other  parties.  But  when  the  cause  came  on  to  be  argued  on  the 
demurrer,  between  the  plaintiff  and  the  two  defendants,  who  had  put 
it  in,  the  Judge  of  the  Court  of  Equity  was  of  opinion,  that  the  case 
was  not  a  fit  one  for  a  bill  of  interpleader,  and  therefore  sustained 
the  demurrer  and  dismissed  the  bill  against  those  two  parties.  From 
that  decree  the  plaintiff  appealed  to  this  Court. 

In  support  of  the  bill,  the  counsel  for  the  plaintiff  has  been  unable 
to  adduce  the  authority  of  any  adjudication.  His  only  reliance  is  a 
dictum  of  Lord  Mansfield,  in  Cooper  v.  Sheriif  of  London,  1  Bur.  Z7 ; 
in  which  he  mentions  a  bill  filed  in  Chancery  by  the  sheriff,  in  a  case 
of  disputed  property,  as  one  of  the  modes  in  which  a  sheriff  may  be 
relieved  from  danger  or  indemnified  from  loss.  That,  however,  could 
not  be  a  question  in  that  cause;  and,  indeed,  the  doctrine  belonged  to 
another  jurisdiction,  and,  therefore,  although  laid  down  by  an  eminent 
Judge,  is  not  authority.  We  are  saved  the  necessity  of  discussing  the 
question  on  elementary  principles,  by  having  a  case  in  equity  deciding 
it  in  opposition  to  that  opinion  of  Lord  Mansfield.  Slingsby  v.  Boul- 
ton,  1  Ves.  &  Bea.  334,  was  a  bill  of  interpleader  by  a  sheriff,  similar 
to  the  present;  and,  on  the  motion  for  an  injunction.  Lord  Eldon  en- 
quired Tor  an  instance  of  such  a  bill  by  a  sheriff,  and,  none  being  cited, 
he  declared  the  sheriff  to  be  concluded  from  stating  a  case  of  inter- 
pleader, because  in  such  a  bill  the  plaintiff  always  admits  a  title  against 
himself  in  all  the  defendants.  He  said,  a  person  cannot  file  such  a 
bill  who  is  obliged  to  state,  that  as  to  some  of  the  defendants  the 
plaintiff  is  a  wrong  doer. 

If,  in  this  case,  the  property  was  in  the  plaintiffs  in  the  actions 
that  have  been  brought  at  law,  the  sheriff  was  a  trespasser  in  seizing 


Ch.    9.)  BILLS   OF  INTERPLEADER.  155 

it,  and  he  did  it  upon  the  responsibility  of  answering  for  the  act  as  a 
trespass.  Against  that  risk  he  should  have  provided,  by  taking  a  bond 
of  indemnity  from  the  execution  creditor.  He  cannot  escape  from 
responsibility  by  turning  over  the  owners  of  the  property  on  the 
creditor.  On  the  other  hand,  if  the  property  was  really  subject  to 
the  debt,  it  was  properly  seized,  and  the  creditor  is  entitled  to  have 
it  sold,  notwithstanding  unfounded  actions  or  claims  by  third  persons. 
The  sherilT  having  thus  made  himself  liable  to  one  or  other  of  the 
parties,  by  misfeasance  or  nonfeasance,  is  not  a  mere  stake-holder, 
but  his  interest  is  directly  involved  in  any  decision  that  can  be  made 
on  the  claims  of  the  other  parties. 

The  decree  must  therefore  stand  affirmed  and  with  costs  in  both 
Courts. 

Per  Curiam.     Decree  accordingly. 


GURLEY  V.  GRUENvSTEIN. 

(Supreme  Court  of  New  York,  1904,  44  N.  Y.  Misc.,  270,  89  N.  Y.  Supp.  88G.) 

Action  of  interpleader  by  the  city  of  New  York  against  James  A. 
Cody  and  others.  Prayer  of  plaintiff  to  be  allowed  to  pay  money 
into  court,  and  the  defendant  interplead  among  themselves  for  the 
same.    Judgment  for  plaintiff,  with  costs. 

Gaynor,  J.  The  essential  facts  are  these:  The  plaintiff  owed  the 
defendants  Cody  Brothers  $9,962.53.  They  assigned  the  debt  to  George 
Fruh,  and  he  assigned  it  to  the  defendant  Cahen.  They  afterward 
also  assigned  it  to  Teresa  Cody,  and  she  assigned  it  to  the  defendant 
Elizabeth  Cody. 

After  notice  of  these  assignments  had  been  filed  with  the  comptroller 
of  the  plaintiff,  the  defendants  Fleer  and  others,  as  judgment  creditors 
of  Cody  Brothers,  brought  suits  against  them  and  this  plaintiff  (the 
city  of  New  York)  and  the  said  Teresa  and  Elizabeth  Cody  to  set 
aside  the  said  assignment  to  the  said  Teresa  Cody,  and  to  reach 
the  fund  and  have  it  applied  on  their  judgments;  and  they  prevailed  in 

their  suits. 

Instead  of  paying  over  the  money  under  the  said  judgments,  the  city 
now  brings  this  interpleader  suit,  making  the  said  Cahcn  a  defendant. 


156  BILLS     OF    INTEEPLEADER.  (Part    3 

as  she  claims  the  fund  under  the  said  prior  assignment  to  Fruh.  Cahen 
was  not  a  defendant  in  the  said  judgment  creditor  suits,  nor  did  the 
city  in  its  answer  therein  set  up  her  claim.  It  answered  by  a  general 
denial  only. 

As  the  said  judgment  creditors  knew  of  the  assignment  under  which 
Cahen  claimed  the  fund  (they  produced  it  and  put  it  in  evidence  on 
the  trial  of  their  suits),  but  nevertheless  omitted  to  make  Cahen  a 
defendant,  their  claim  now  that  the  city  should  be  defeated  here  for 
laches  in  not  pleading  the  claim  of  Cahen  in  the  said  suits  is  untenable. 
They  were  in  no  way  misled  by  the  city,  and  hence  there  is  no  foun- 
dation for  their  claim  of  laches  against  the  city.  The  neglect  of  Cahen 
not  being  a  party  was  primarily  theirs.  If  the  city  alone  had  knowl- 
edge of  the  Cahen  claim,  or  if  it  was  under  a  duty  to  cause  it  to  be 
litigated  in  the  said  suits  and  the  plaintiffs  therein  were  unable  to 
cause  it  to  be  so  litigated,  the  case  here  would  be  different.  Baker  v. 
Brown,  64  Hun.  627,  19  N.  Y.  Supp.  258. 

Judgment  for  the  plaintiff  without  costs. 


KOPPTNGER  V.  O'DONNELL. 

(Supreme  Court  of  Rhode  Island,  1889,  16  R.  I.  417.) 

Bill  in  equity  in  the  nature  of  interpleader,  and  for  an  account  and 
to  redeem.    On  demurrer  to  the  bill. 

January  26.  1889.  DurFEE,  C.  J.  The  case  set  forth  in  the  bill  is 
as  follows:  The  complainant,  being  seized  on  March  22,  A.  D.  1876, 
of  a  lot  of  land  in  Cranston,  mortgaged  it  to  Willam  Hartly  to  secure 
a  note  for  $300,  given  by  her  husband  to  said  Hartly.  June  26,  1878, 
Hartly  sold  the  mortgage  and  note  to  the  defendant,  Hugh  O'Donnell, 
for  a  valuable  consideration  paid  by  said  Hugh,  but  transferred  the 
mortgage  to  the  defendant,  Catherine  O'Donnell,  wife  of  said  Hugh. 
On  December  7,  1876,  the  complainant  mortgaged  said  lot  to  secure 
a  note  for  $200  given  by  her  husband  to  said  Hugh  for  money  lent 
to  him  by  said  Hugh,  but  the  mortgage  was  made  to  said  Catherine. 
The  complainant  always  understood  that  her  liability  was  to  Hugh, 
and  paid  the  interest  accruing  on  the  notes  to  him,  and  Catherine 
never  demanded  the  interest  thereon  until  within  a  year.    The  bill  avers 


Cll.    9.)  BILLS   OF  INTERPLEADER.  157 

on  information  and  belief  that  the  mortgages  and  notes  were  de- 
Hvered  to  Hugh,  and  have  always  been  held  by  him  as  his  own;  but 
Catherine  now  claims  to  be  the  legal  owner  and  to  be  entitled  to  pay- 
ment, and  has  advertised  the  mortgaged  lot  for  sale  under  the  power 
contained  in  the  second  mortgage.  The  complainant  avers  that  she  is 
ready  to  pay  the  notes  and  mortgages,  but  Catherine  not  having  them 
cannot  surrender  them  when  paid,  and  that  Hugh  who  has  them 
demands  payment  to  himself.  The  prayer  is.  that  an  account  may  be 
taken  to  ascertain  the  amount  due  on  the  notes,  and  that  the  com- 
plainant may  be  permitted  to  pay  the  amount  when  ascertained  into 
court;  that  the  respondents  may  thereupon  be  decreed  to  interplead, 
and  to  cancel  said  notes  and  mortgages,  and  surrender  them  to  the 
complainant ;  and  for  an  injunction  meanwhile  staying  sale  under  the 
mortgages,  or  either  of  them,  and  for  general  relief.  Catherine  has 
demurred,  and  the  case  is  before  us  on  her  demurrer. 

The   defendant,   Catherine,   contends   in   support   of   the   demurrer, 
that  the  bill  does  not  make  a  case  for  interpleader,  because,  if   the 
allegations  of  the  bill  are  true,  the  complainant  can  exonerate  herself 
from  liability  by  paying  the  notes  to  Hugh,  since  the  notes,  if  the 
allegations  are  true,  clearly  belong  to  him.     Doubtless  it  is  incumbent 
on  the  complainant  in  a  strict  bill  of  interpleader  to  show  by  the  bill 
not  only  that  there  are  conflicting  claims,  but  also  that  it  is  doubtful 
which  of  them  is  right.     Tt  is  not  clear  that  the  bill  here  does  not 
answer  this   requirement.      It    shows   that   the   two    defendants   both 
claim  to  be  entitled  to  payment,  and  that,  while  the  husband  paid  the 
money  for  the  notes  and  mortgages,  the  mortgages  were  taken  in  the 
name  of  the  wife,  which  affords  a  presumption  that  they  were  intended 
as  gifts  to  her.    The  fact  that  the  husband  has  kept  them  in  his  posses- 
sion, and  has  collected  the  interest  on  the  notes,  is  not  necessarilv 
inconsistent  with  such  an  intent,  he  being  her  husband.    The  bill,  how- 
ever   is  not  a  strict  bill  of  interpleader,   for  in  such  a  bill  the  com- 
plainant onlv  asks  for  liberty  to  pay  the  money  to  whichever  party 
is  entitled  to   it.   and   thereafter  be   protected   against   the   clamis   of 
both  •  whereas  the  complainant  here  seeks  relief  for  herself  as  well,  and 
prays  for  an  ad  inlcrini  injunction,  and  that  an  account  may  be  taken 
to   ascertain   the   amount   due   on   \hv   mortgages,   and   upon   ,.avment 
thereof  to  have  the  mortgages  cancelled  and  the  mortgages  and  mort- 
gage notes  surrendered  to  her.     Such  a  bill  i<  dcnominate.l  a  1).ll   ,n 


158  BILL>S     OF    INTERPLEADER.  (Part    3 

the  nature  of  a  bill  of  interpleader,  and  has  been  held  to  be  the  proper 
remedy  where,  as  here,  the  complainant  is  a  mortgagor  seeking  to 
redeem,  and  there  are  conflicting  claims  to  the  mortgage  money.  Bedell 
V.  Hoffman,  2  Paige,  199;  2  Story  Eq.  Juris,  sec.  824.  We  think  the 
first  ground  of  demurrer  is  untenable.     .     .     . 

We  do  not  think  that  an  affidavit  negativing  collusion  was  necessary 
inasmuch  as,  the  complainant  seeking  affirmative  relief,  the  bill  is  not 
strictly  a  bill  of  interpleader.  2  Daniell,  Chan.  Plead.  &  Practice,  1563; 
Vyvyan  v.  Vyvyan,  30  Beav.  65,  70.     Demurrer  overruled. 


C'll.   10.)  BILLS   OF  PEACE  159 


CHAPTER  X.  BILLS  OF  PEACE 


CADIGAN  V.  BROWN. 

(Supreme  Court  of  Massachusetts,  1876,  120  Mass.  493.) 

Morton,  J.  This  is  a  bill  in  equity  alleging  that  each  of  the  plain- 
tiffs is  the  owner  of  a  lot  of  land  abutting  on  a  passageway  five  feet 
wide,  and,  as  appurtenant  thereto,  has  a  right  of  way  over  said  passage- 
way in  common  with  others;  that  the  defendants  have  commenced  to 
build  a  house  at  one  end  of  the  passageway,  so  as  to  narrow  the 
width  of  the  entrance  to  about  four  feet,  and  have  raised  the  grade 
and  filled  up  a  part  of  the  passageway  so  as  to  injure  the  access  to  the 
lots  of  the  plaintiffs.  The  prayer  is  that  the  defendants  be  restrained 
from  building  the  house,  that  the  said  obstructions  may  be  removed, 
and  for  general  relief.  The  defendants  demur,  upon  the  grounds  that 
the  plaintiffs  are  improperly  joined,  and  that  they  do  not  state  a  case 
which  entitles  them  to  relief  in  equity,  having  a  plain,  adequate  and 
complete  remedy  at  law.     .     .     . 

2.  The  other  ground  of  demurrer  is  that  the  plaintiffs  are  improp- 
erly joined.  The  bill  shows  that  each  of  the  plaintiffs  owns  a  lot 
abutting  on  the  passageway,  by  a  separate  and  independent  title.  They 
derive  their  titles  from  different  grantors.  Undoubtedly,  in  a  suit  at 
law  for  the  nuisance,  they  could  not  properly  join.  But  the  rule  in 
equity  as  to  the  joinder  of  parties  is  more  elastic.  Generally,  when 
several  persons  have  a  common  interest  in  the  subject  matter  of  the 
bill,  and  a  right  to  ask  for  the  same  remedy  against  the  defendant, 
they  may  properly  be  joined  as  plaintiffs.  Thus  in  Parker  v.  Nightin- 
gale, 6  Allen  341,  the  plaintiffs,  being  several  owners  of  lots  in  TLiy- 
ward  Place,  each  lot  being  held  subject  to  the  restriction  that  no  build- 
ings should  be  erected  thereon  except  for  dwelling-houses,  joined  in  a 
suit  to  restrain  the  defendants  from  violating  the  restriction.  vSo  in 
Ballou  V.  Ilopkinton,  4  Cray,  324,  several  owners  of  mills  upon  a 


160  BILLS  OF  PEACE.  (Part.  3 

stream  joined  as  plaintiffs  in  a  bill  in  equity  to  restrain  the  defendant 
from  diverting  and  wasting  the  water  of  a  reservoir,  and  to  equal- 
ize the  flow  of  water  in  the  stream.  Indeed,  in  the  latter  case  the 
court  assigns,  as  one  of  the  reasons  for  holding  jurisdiction  in  equity, 
that  at  law  each  owner  must  bring  a  separate  action  to  obtain  a  remedy 
for  his  particular  injury,  and  thus  the  remedy  in  equity  prevents  a 
multiplicity  of  suits. 

In  the  case  at  bar,  the  plaintiffs,  though  they  hold  their  rights  under 
separate  titles,  have  a  common  interest  in  the  subject  of  the  bill.  They 
are  affected  in  the  same  way  by  the  acts  of  the  defendants,  and  seek 
the  same  remedy  against  them.  There  is  no  danger  of  confusion  in 
the  trial,  or  of  injustice  to  the  defendants,  from  the  joinder  of  the 
plaintiffs ;  but  the  rights  of  all  parties  can  be  adjusted  in  one  decree, 
and  a  multiplicity  of  suits  is  prevented.  We  are  therefore  of  opinion 
that  this  ground  of  demurrer  cannot  be  sustained.     .     .     . 


POWELL  AND  OTHERS  v.  THE  EARL  OF  POWIS  AND 

OTHERS. 

(In  the  Exchequer,  1826,  1  Y.  &  J.,  159.) 

The  bill   stated,  that  the  plaintiffs   were   seized   in   fee   of   several 
ancient    freehold   messuages    or   tenements,    with    the    appurtenances, 
situate  within,  and  holden  of,  the  honor  of  lordship  of  Clun.  in  the 
county  of  Salop;  and  then  were,  and  for  several  years  had  been,  in 
the  occupation  of  such  messuages  or  tenements;  and  that  they,  and 
those  whose  estate  they  respectively  had,  as  such  tenants  as  afore- 
said, had  from  time  whereof.  &c.  had.  and  of  right  ought  to  have, 
common  of  pasture  for  all  their  commonable  cattle  levant  and  couchant, 
common   of   turbary,   and   also   common   of    estovers,    in,    upon,   and 
throughout  a  certain  forest  or  waste,  parcel  of  the  said  honor  or  lord- 
ship Clun,  called  the  forest  of  Clun ;  that  the  several  other  tenants  of 
the  honor  or  lordship  were  entitled  to  the  same  rights.     That  the  Earl 
of  Powis  was,  and  had  been  for  many  years,  seised  of  the  honor  or 
lordship,  and  had  lately  taken  upon  himself  to  inclose,  or  to  permit  to 
be  inclosed,  certain  large  portions  or  tracts  of  the  forest,  to  the  detri- 
ment of  the  plaintiffs  and  the  other  persons  entitled  to  commonable 


Ch-   10.)  BILLS   OF  PEACE  •  IGl 

rights;  and  that  the  Earl  of  Powis  had  granted  the  parts  so  inclosed 
to  the  other  defendants,  except  the  defendant  Edye,  who  were  in 
possession  of  them.    That  the  right  of  the  several  tenants  of  the  honor 
or  lordship  to  common  of  pasture  without  stint,  and  to  common  of 
estovers  upon  the  said  forest  or  waste,  was  established  by  a  decree 
of  this  Court,  Hil.  T.  24  Eliz.  her  said  Majesty  being  then  seised 
in  right  of  the  Crown  of  the  said  honor  or  lordship.    That  the  plaintiffs, 
a  short  time  before  the  filing  of  the  bill,  had  broken  down  parts  of  the 
fences  of  the  parts  so  inclosed,   for  the  purpose  of  exercising  their 
commonable  rights.    The  bill  charged,  that  the  several  defendants,  ex- 
cept the  Earl  of  Powis,  had,  at  the  instigation  of  the  Earl,  or  with  his 
concurrence,  and  on  some  understanding  that  he  would  defray  the  ex- 
pense, commenced  actions  of  trespass  against  the  plaintiffs.     The  bill 
also  charged,  that  the  defendant  Edye  was  steward  of  the  lordship,  and, 
as  such  steward,  had  in  his  custody  the  books  and  muniments  relating 
to  the  customs  of  the  lordship  and  the  rights  of  the  tenants,  but  that  he 
colluded  with  the  other  defendants  and  refused  to  produce  them.    The 
bill  further  charged  that  Earl  Powis  and  Edye  had  divers  books,  writ- 
ings, &c.  from  which  the  facts  stated  in  the  bill  would  appear.     The 
bill  prayed,  that  the  rights  of  common  of  the  plaintiffs  and  the  other 
freehold  tenants  might  be  established ;  and  that  the  plaintiffs  and  the 
other  tenants  might  be  quieted  in  such  rights ;  that  the  Earl  of  Powis 
might  be  restrained  from  inclosing  any  part  of  the  forest,  to  the  prej- 
udice of  the  plaintiffs  and  the  other  tenants,  and   from   obstructing 
or  molesting  them  in  their  commonable  rights ;  and  for  an  injunction 
against  the  actions  of  trespass  brought  by  the  other  defendants. 
To  this  bill  the  defendants  put  in  a  general  demurrer.     .     .     . 
Simpkinson,  in  support  of  the  bill.     .     .     .     The  law  is  clearly  laid 
down  in  T.ord  Tenham  v.  Herbert    (2  Atk.  483).     There  the  Lord 
Chancellor  said,  "where  a  man  sets  up  a  general  exclusive  right,  and 
where  the  persons  who  controvert  it  with  him  are  very  numerous,  and 
he  cannot  by  one  or  two  actions  at  law  quiet  that  right,  ho  may  come 
into  a  Court  of  Equity  first  which  is  called  a  bill  of  peace,  and  the 
Court  will  direct  an  issue  to  determine  the  right,  as  in  disputes  be- 
tween lords  of  manors  and  their  tenants,  and  between  tenants  of  one 
manor  and  another;  for  in  these  cases- there  would  be  no  end  of  bring- 
ing actions  of  trespass,  since  such  action  would  determine  only  llic  par- 
ticular right  in  question  between  the  plaintiff  and  defendant."     .     .     . 
3  Eq— 11 


162  ,  BILLS  OF  PEACE.  •  (Part.  3 

Lord  ChiEF^  Baron.  This  is  a  demurrer  to  a  bill,  commonly  called 
a  Bill  of  Peace.  The  cases  establish  that  a  bill  may  be  brought  by  a 
lord  against  his  tenants,  and  by  tenants  against  the  lord,  in  respect  to 
rights  of  common.  It  is  a  bill  of  peace,  and  to  prevent  multiplicity  of 
actions. 

The  dicta  and  cases  shew,  that  it  is  no  objection  to  this  bill,  that  the 
defendants  may  each  have  a  right  to  make  a  separate  defence,  provided 
there  be  only  one  general  question  to  be  settled,  which  pervades  the 
whole. — It  would  be  against  all  the  cases  to  allow  this  demurrer ;  it 
would  put  the  bill  out  of  Court.  It  is  not  to  be  inferred  from  this  that 
the  Court  will  assume  jurisdiction  to  decide  any  legal  question  without 
referring  it  to  law.  But  until  the  defendant  has  answered,  the  Court 
cannot  know  what  the  question  may  be.  In  all  probability  there  may 
be  one  general  question,  as  between  the  lord  and  all  the  tenants. 

It  may  certainly  be  a  question  whether  the  lord  will  approve  at 
all.  It  may  also  be  a  question  if  he  does,  whether  he  has  left  sufficient 
common  for  the  commoners.  In  the  case  of  Weekes  v.  Slake,  issues 
were  directed.  We  are  therefore  of  opinion  that  the  Court  must  hear 
more  of  the  case  before  it  can  ascertain  what  course  ought  to  be  taken. 
This  cannot  be  known  until  the  answer  comes  in.  This  pledges  the 
Court  to  nothing.      Demurrer  overruled. 


KEYES  V.  LITTLE  YORK  GOLD  WASHING  &  WATER  CO. 

(Supreme  Court  of  California,  1879,  53  Cal.  724.) 

By  The  Court.  The  complaint  sets  forth  that  the  plaintiff  is  the 
owner  of  certain  described  premises  known  as  bottom  land,  situate 
in  the  valley,  upon  the  banks  of  Bear  River,  about  ten  miles  from 
where  that  stream  debouches  into  the  Sacramento  Valley,  and  midway 
between  that  point  and  the  mouth  of  the  river ;  that  the  defendants 
are  miners  severally  engaged  in  hydraulic  mining  at  points  high  up  on 
Bear  River  and  its  tributaries — the  several  mining  properties  of  the 
defendants  lying  within  a  radius  of  seven  miles  upon  the  hill-tops 
adjacent  to  the  river,  and  being  severally  wrought  and  carried  on  by 
the  respective  defendants,  and  that  the  several  dumps  used  by  the 
defendants  respectively  in  their  mining  pursuits  are  some  of  them  in 


Cll.   10.)  BILLS   OF  PEACE  1G3 

the  bed  of  the  river,  others  in  the  beds  of  steep  ravines  and  giilches 
immediately  contiguous  to  and  leading  into  the  bed  of  the  river  and 
its  tributaries ;  that  the  taihngs  of  the  several  mining  claims  deposited 
on  these  dumps  are  swept  down  the  river  by  the  force  of  the  current 
until  they  reach  the  lands  of  the  plaintiff  below,  upon  which  they 
are  deposited,  and  which  they  cover  so  as  to  destroy  the  value  of  the 
said  lands.  The  prayer  is  that  an  injunction  issue  enjoining  the  de- 
fendants from  depositing  the  tailings  and  debris  of  their  several 
mining  claims  so  that  they  reach  the  channels  of  the  river,  etc. 

The  defendants  appeared  to  the  action,  and  filed  a  demurrer  to  the 
complaint  upon  several  grounds — and.  among  others,  upon  the  ground 
that  there  is  a  misjoinder  of  parties  defendant,  in  that  it  did  not 
appear  by  the  complaint  that  the  defendants  jointly  committed  any  of 
the  acts  complained  of.  or  are  acting  therein  in  concert  or  by  collusion 
with  each  other,  but  that,  on  the  contrary,  it  did  appear  by  the  com- 
plaint that  the  defendants  had  no  interest  in  common  in  the  subject- 
matter  of  the  suit,  but  were  acting  severally  and  without. any  joinder 
or  co-operation  on  the  part  of  the  defendants,  or  any  of  them.  The 
demurrer  was  overruled  by  the  Court  below,  and  the  propriety  of  its 
action  in  that  respect  is  brought  in  question  by  this  appeal.     .     .     . 

Several  cases  were  cited  by  counsel  for  respondent  which  it  was 
claimed  would  sustain  the  joinder  of  the  defendants  in  this  action,  but 
an  examination  will  clearly  distinguish  them  from  the  present.  Mayor 
of  York  V.  Pilkington,  1  Atk.  282,  was  a  bill  of  peace  to  prevent  a 
multiplicity  of  suits.  In  a  certain  sense,  all  bills  of  peace  are  intended 
to  prevent  multiplicity  of  suits,  but  it  is  a  non  sequitur  to  assert  that 
wherever  the  result  of  assumed  jurisdiction  by  a  Court  of  Equity 
will  relieve  the  plaintiff  of  the  inconvenience  of  bringing  several 
separate  actions  at  law  or  suits  in  equity,  the  complainant  is  to  be 
termed  a  bill  of  peace.  In  Mayor  v.  Pilkington,  a  bill  was  brought 
to  quiet  the  pla'mtijfs  in  a  right  of  fishery  in  the  River  Ousc.  of  which 
they  claimed  the  sole  fishery  "of  a  large  tract"  against  the  defendants, 
who,  it  was  suggested  by  the  bill,  claimed  several  rights,  cither  as 
lords  of  manors  of  occupiers  of  adjacent  lands.  The  main  question 
was  whether,  in  view  of  the  fact  that  there  was  no  privity  between  *he 
defendants,  the  bill  could  be  maintained.  Holding  tlie  affirmative  on 
this  proposition,  the  Court  of  Cbancery  was  authorized  to  retain  the 
cause  for  other  purposes.    But  the  gravamen  of  tlie  bill  was  not  tli;it 


164  BILLS  OF  PEACE.  (Part.  3 

the  defendants  were  several  and  separate  trespassers,  (the  view  upon 
which  the  demurrer  was  sustained  at  the  first  argument)  but  was  that 
the  plaintiff  had  an  exclusive  right  against  which  defendants  were 
asserting  adverse  rights.  The  proceeding  was  analogous  to  our  action 
to  quiet  title.  The  present  case  more  resembles  Dilley  v.  Doig,  2  Vesey 
Jr.  486,  in  which  the  proprietor  of  a  copyright  sought  to  restrain  in  the 
same  suit  several  and  independent  infringements  of  his  right  by  dif- 
ferent persons.  In  that  case  there  was  no  allegation  in  the  bill  of  a 
claim  of  right  on  the  part  of  the  defendants  to  sell  copies  of  the 
spurious  edition  of  the  book,  and,  from  the  nature  of  the  circumstances 
detailed,  there  could  have  been  no  such  allegation.  The  defendants 
were  alleged  to  be  severally  wrong-doers  without  any  combination. 
The  Lord  Chancellor  said:  "The  right  against  the  different  book- 
sellers is  not  joint,  but  perfectly  distinct;  there  is  no  privity."  The 
subject-matter  of  the  bill  was  a  wrong  done  by  each  of  the  booksellers; 
its  object  was  not  to  obtain  a  final  determination  that  the  plaintiff 
had  the  exclusive  right,  and  that  the  defendants  had  no  right,  (for 
it  was  not  asserted  that  they  claimed  any)  but,  as  in  the  present  case, 
simply  to  enjoin  wrongs  threatened  by  the  defendants  severally,  and 

not  jointly.     .     .     . 

We  have  no  doubt  that  the  objections  to  the  complaint  above  con- 
sidered could  properly  be  presented  by  a  demurrer  on  the  ground  of 
misjoinder  of  parties  defendant.     .     .     . 


SOUTHERN  STEEL  CO.  v.  HOPKINS. 

(Supreme  Court  of  Alabama,  1911,  174  Ala.  465,  57  So.  11.) 

May^iEld,  J.  This  is  a  suit  in  equity  to  enjoin  the  prosecution  of 
110  separate  actions  at  law.  The  sole  ground  of  equity  jurisdiction  up- 
on which  the  suit  is  based  is  to  prevent  a  multiplicity  of  suits.  The  sepa- 
rate actions  at  law  were  brought  by  the  administrators  of  110  unfortu- 
nate workmen,  who  lost  their  lives  by  an  explosion  in  a  coal  mine. 
Each  of  these  110  actions  was  brought,  under  the  employer's  liability 
act,  to  recover  damages  for  the  wrongful  death  of  the  respective  in- 
testate ;  was  brought  against  the  same  defendant,  the  complainant^  in 
this  suit ;  and  sought  to  recover  on  account  of  negligence  in  causing 


Ch.    10.)  BILLS    OF  TEACE  1(35 

or  allowing  the  explosion  which  killed  the  unfortunate  workmen. 

The  prayer  for  relief  is  as  follows:  "Your  orator  further  prays 
that  your  honor  will  grant  unto  your  orator  a  preliminary  writ  of  in- 
junction, enjoining  and  restraining  each  and  all  of  said  parties  defend- 
ant and  their  attorneys  and  successors  from  all  further  proceedings 
in  said  actions  at  law.  or  prosecuting  the  same  in  any  manner,  until 
the  further  orders  of  this  court,  and  that  your  honor  will  proceed  to 
hear  and  determine  the  question  of  the  liability  vel  non  of  said  Ala- 
bama Steel  &  Wire  Company,  in  the  premises,  and,  if  there  should 
prove  to  be  any  such  liability,  that  your  honor  will  further  determine 
the  extent  thereof,  and  the  manner  and  mode  in  which  the  same  shall 
be  prorated  or  paid." 

This  appeal,  for  the  second  time,  brings  up  for  our  decision  the 
equity  of  this  bill,  a  full  statement  of  the  facts  of  which,  and  a  dis- 
cussion of  the  law  involved,  may  be  found  in  the  reports  of  the  case 
in  157  Ala.  175,  47  South.  274,  20  L.  R.  A.  (N.  S.)  848,  131  Am. 
St.  Rep.  20. 

The  question  of  law  involved  in  this  suit  is  this:  Has  a  court  of 
equity  jurisdiction  to  enjoin  numerous  tort  actions,  brought  by  dif- 
ferent plaintiffs  against  the  same  defendant  when  there  is  merely  a 
community  of  interest  in  the  questions  of  law  and  of  fact  involved,  and 
no  common  title,  no  community  of  interest  or  of  right,  in  the  subject- 
matter?  This  question  .was  decided  in  the  af^rmative  by  this  court 
on  the  former  appeal.  After  the  cause  was  remanded,  the  complainant 
amended  the  bill,  and  other  defendants  demurred,  and  again  raised 
the  equity  of  the  bill  as  last  amended.  The  Chancellor  again  sus- 
tained the  demurrer,  and  from  that  decree  the  complaint  again  appeals 
to  this  court. 

We  regret  the  necessity  of  overruling  our  former  decision,  and 
recognize  and  appreciate  the  wisdom  in  the  maxim,  that  "it  is  as  im- 
portant that  the  law  be  certain  as  that  it  be  right ;  "yet  it  is  not  only 
our  prerogative,  but  our  duty,  to  overrule  a  former  decision,  when  we 
are  convinced  that  it  is  fundamental  wrong,  both  in  Iheory  and  in  prac- 
tice." 

There  is  a  sharp  and  distinct  conflict  in  the  decisions  of  the  various 
courts  upon  this  question  ;  but,  after  a  careful  examination  and  review 
of  many  of  them,  and  of  the  text-books  upon  the  subject.  \vr  are  con- 
strained to  recede  from  the  holding  on  the  former  ai^ix-al,  and  to  fol- 


166  BILLS  OF  PEACE.  (Part.  3 

low  that  line  of  decisions  and  those  text-books  which  deny  equity 
jurisdiction  to  prevent  a  multiplicity  of  suits  at  law,  in  the  absence 
of  a  common  title,  or  of  some  community  of  right  or  interest,  in  the 
subject-matter  among  the  several  parties.  To  state  the  proposition  dif- 
ferently, we  now  hold  that  a  community  of  interest  among  the  several 
parties  in  the  questions  of  law  and  of  fact  involved  is  not  sufficient  to 
confer  jurisdiction  upon  a  court  of  equity  to  enjoin  the  several  tort 
actions  at  law,  though  brought  against  the  same  defendant,  and 
though  each  may  depend  upon  the  same  state  of  facts.     .     .     . 

The  evil  consequences  of  maintaining  the  equity  of  a  bill  like  this 
is  illustrated  clearly  by  the  record  in  this  case.  The  explosion  which 
killed  the  110  workmen  in  question,  and  which  is  the  subject  of  this 
controversy,  occurred  February  20,  1905,  and  because  of  this  proceed- 
ing a  trial  of  those  110  damage  suits  has  been  delayed  for  more  than 
six  years.  Suppose  the  equity  of  the  bill  should  be  sustained  and  the 
parties  proceed  to  trial,  and  the  complainant,  fail,  then  the  parties 
plaintiff,  after  a  delay  of  many  years,  will  have  to  be  remitted  to 
courts  of  law  to  try  each  of  these  cases  separately.  Or,  if  the  com- 
plainant succeeded,  still  there  must  be  110  trials  in  the  court  of 
chancery,  not  only  as  to  the  liability  vel  non,  as  to  each  of  the  persons 
killed,  but  as  to  the  amount  of  damages  recoverable  in  each  case.  If 
the  complainant  is  liable  under  the  employer's  liability  act,  the  amount 
for  which  it  is  liable  would  be  different  in  ea(;h  of  the  110  cases,  de- 
pending upon  the  earning  capacity  of  each  decedent,  which  in  its  turn, 
depends  upon  age,  character,  habits,  etc. 

It  would  be  difficult  to  select  a  case  that  would  more  clearly  demon- 
strate the  impracticability  of  the  rule  than  the  one  under  consideration. 
Contemplate  110  separate  answers,  and  as  many  pleas  and  demurrers 
in  one  suit,  and  the  innumerable  issues  of  law  and  of  fact  that  would 
be  raised  thereby,  and  the  defense  being  conducted  by  110  different 
attorneys,  or  the  parties  deprived  of  the  right  to  have  the  counsel  of 
their  choice — a  worse  confusion  could  scarcely  be  imagined.  It 
could  be  likened  unto  the  confusion  of  tongues  at  the  building  of  the 
Tower  of  Babel. 

To  reach  a  final  decree  in  this  case  that  would  approach  justice 
for  all,  by  a  trial  of  all  these  issues,  and  a  trial  in  accordance  with  our 
statutes  and  the  rules  of  law  and  chancery  provided  for  such  cases, 
would  be  wholly  impracticable,  if  not  impossible.    No  stronger  or  more 


Ch.    10.)  BILI^    OF  PEACE  '  167 

conclusive  argument  could  be  produced  to  show  that  the  >i-ule  an- 
nounced on  the  former  appeal  is  wrong  than  would  be  an  attempted 
trial  of  this  case  upon  its  merits,  in  a  chancery  court,  under  the  prayer 
of  the  bill  quoted  above. 

No  error  appearing  in  the  record,  the  decree  of  the  chancellor  is 
affirmed. 


BALIvOU  &  OTHERS  v.  INHABITANTS  OF  HOPKINTON. 

(Supreme  Court  of  Massachusetts,  1855,  70  Mass.   (4  Gray)  324.) 

Bill  in  equity,  filed  on  the  7th  of  June  1853,  to  restrain  the  de- 
fendants from  letting  off  and  wasting  the  water  in  a  reservoir  on 
Mill  River,  situated  in  the  towns  of  Hopkinton,  Milford  and  Up- 
ton. 

Shaw,  C.  J.  The  only  questions  in  the  present  ca.se  are,  whether 
this  court  have  jurisdiction  in  equity,  to  restrain  and  prohibit  the  de- 
fendants from  drawing  off  water  from  the  plaintiff's  reservoir,  estab- 
lished for  the  purpose  of  supplying  the  several  mills  of  the  plaintiffs, 
on  one  and  the  same  stream ;  and  whether  it  is  a  fit  case  for  the  court 
to  exercise  that  jurisdiction,  rather  than  leave  the  plaintiffs  to  their 
actions  at  law,  to  recover  damages  for  the  injuries  done  them  respec- 
tively in  diminishing  the  water  at  their  respective  mills. 

The  case  comes  before  us  on  a  general  demurrer,  and  therefore  we 
are  to  take  the  facts  set  forth  by  the  plaintiffs  to  be  true,  for  the 
purpose  of  the  present  inquiry.  The  case  set  forth  in  the  bill  is  alleged 
to  consist  in  an  injury  done  by  the  defendants  to  the  incorporeal 
hereditaments  of  the  several  plaintiffs,  in  wasting  the  water  which 
would  flow  to  their  mills  when  it  would  be  useful  and  beneficial  to 
them,  and  thereby  impairing  and  diminishing  their  water  power.  This 
is  technically  a  private  nuisance,  the  appropriate  remedy  for  which, 
at  law,  would  be  an  action  on  the  case  for  a  disturbance.  In  such 
action  at  law,  the  remedy  would  be  a  verdict  for  nominal  damages 
for  the  disturbance  of  the  plaintiff's  right;  but  if  actual  damage  were 
proved  to  have  been  sustained,  as  the  natural  consequence  of  such  in- 
terruption, then  for  such  sum  as  would  be  a  compensation  therefor 
up  to  the  time  of  the  verdict,  or  of  the  action  brought.     P)eing  by  the 


3'')8  •      BILLS  OF  PEACE.  (Part. 


«> 


rules  of  law  a  nuisance,  we  have  no  doubt  that  it  is  within  the  Rev. 
Sts.  c.  81,  sec.  8,  cl.  8,  giving  this  court  jurisdiction  in  equity,  "in  all 
suits  concerning  waste  and  nuisance."  Boston  Water  Power  Co.  v. 
Boston  &  Worcester  Railroad,  16  Pick.  512. 

The  other  question  is,  whether,  taking  the  subject  of  the  complaint 
as  the  plaintiffs  have  stated  it,  the  bill  shows  that  the  plaintiffs  have 
such  a  plain,  adequate  and  complete  remedy  at  law,  that,  according  to 
the  precedents  and  rules  of  equity,  a  bill  ought  not  to  be  sustained, 
so  that  the  demurrer  is  well  taken  to  it  on  that  ground. 

Upon  this  question,  the  court  are  of  opinion  that  the  case  shows 
no  such  adequate  and  complete  remedy  at  law  as  to  deprive  them  of 
the  right  of  proceeding  in  equity,  and  that  the  demurrer  ought  not 
to  be  sustained.  Some  of  the  more  prominent  reasons  for  this  deter- 
mination are  these : 

Although  the  plaintiff's  are  several  owners  of  separate  and  distinct 
mills,  injured  by  the  alleged  stoppage,  diversion  and  waste  of  the  water 
of  Mill  River,  and  to  recover  damages  for  which  each  owner  must 
bring  his  several  action  at  law  to  obtain  a  remedy  for  his  particular 
injury,  yet  they  have  a  joint  and  common  right  in  the  natural  flow  of 
the  stream,  and  in  the  reservoir  by  which  its  power  is  increased,  and 
a  joint  interest  in  the  remedy,  which  equity  alone  can  afford,  in  main- 
taining a  regular  flow  of  the  water  of  the  receiver  at  suitable  and 
proper  times,  so  as  best  to  subserve  the  equal  rights  of  them  all.  The 
remedy  in  equity  therefore  would,  by  one  decree  in  one  suit,  prevent 
a  multiplicity  of  actions.     .     .     . 

In  regulating  the  rights  of  mill  owners  and  all  others  in  the  use 
of  a  stream,  wherein  numbers  of  persons  are  interested,  equity  is 
able,  by  one  decree,  to  regulate  their  respective  rights,  to  fix  the  time 
and  manner  in  which  water  may  be  drawn,  and  within  what  limits  it 
shall  or  shall  not  be  drawn  by  all  parties  respectively ;  and  thus  it  is 
peculiarly  adapted  to  the  relief  sought  against  such  alleged  nuisance 
and  disturbance,  and  affords  a  more  complete  and  adequate  remedy 
than  can  be  afforded  by  one  or  many  suits  at  law.  Bemis  v.  Upham, 
13  Pick.  169;  Bardwell  v.  Ames,  22  Pick.  333. 

Demurrer  overruled. 


CL.   10.)  BILI^   OF  PEACE  1  (>1> 


CITY  OF  CHICAGO  v.  CHICAGO  CITY  RY.  CO. 

(Supreme  Court  of  Illinois,  1906,  222  111.  560,  78  N.  H.  890.) 

Cartwright,   T-     •     •     •     The  ordinance  in  this  case,    [regulating 
the  heating  and  ventilating  of  street  cars  and  pt'oviding  against  over- 
crowding], is  within  the  powers  conferred  upon  the  defendant,  and  it 
has  for  its  object  the  laudable  purpose  of  protecting  the  traveling 
public   against    discomfort,    annoyance    and    danger.      It    is    designed 
to  promote  the  public  comfort,  safety  and  health  by  preventing  the 
overcrowding  of  cars,  and  it  should  be  sustained  if  it  is  legally  possible 
to  do  so.     To  grant  an  injunction  and  prevent  the  prosecution  of 
offenses   against   the    ordinance   during  the   progress   of    a    chancery 
cause  would  be  to  render  the  municipal  authorities  helpless  in  the  dis- 
charge of  their  public  duties  and  suspend  their  legimate   functions, 
contrary  to  public  policy  and  public  interest.     At  the  end  of   such 
a  suit  the  court  would  have  no  right  to  determine  whether  the  com- 
plainants have  been  guilty  of  any  infractions  of  the  ordinance  or  to 
impose  any  penalty  upon  them.     If  the  city  should  be  found  to  be  in 
the  right  and  the  ordinance  valid,  all  that  the  court  could  do  would 
be  to  dismiss  the  bill  and  send  the  parties  back  to  a  court  of  law.    In 
such  a  case  a  court  of  equity  would  not  be  warranted  in  interfering 
unless  it  is  clearly  necessary  to  the  protection  of  some  right  recogniz- 
ed only  by  courts  of  equitable  jurisdiction.     .     .     . 

There  are  cases  in  which  a  court  of  equity  will  interfere  to  enjoin 
the  enforcement  of  an  ordinance  for  the  reason  that  a  multiplicity 
of  suits  will  be  prevented  thereby,  and  it  is  argued  that  this  is  such  a 
case.  The  bill  is  filed  by  two  complainants,  who  say  tliat  they  also 
ask  relief  for  all  others  similarly  situated.  The  facts  stated,  how- 
ever, df)  not  show  that  any  other  persons  or  corporations  are  similarly 
situated.  It  appears  from  the  bill  that  the  complainants  serve  prac- 
tically the  whole  city  of  Chicago ;  that  the  population  served  by  them 
is  upward  of  2,000,000,  and  that  with  the  exception  of  twelve  other 
lines  operating  in  outlying  districts  and  not  owning  down-town  termi- 
nals, they  are  the  only  persons  or  corporations  fm-nishing  street  railway 
transportation.     Tl  docs  not  appear  ihat  the  few  other  persons  or  cor- 


170  BILLS  OF  PEACE.  (Part.  ?> 

porations  operating  in  outlying  and  sparsely  settled  districts  do  not 
furnish  a  sufficient  number  of  cars,  or  that  there  is  any  necessity  in 
such  districts  for  overcrowding,  or  that  overcrowding  cars  is  per- 
mitted, or  that  any  prosecution  has  been  begun  or  threatened  against 
any  other  person  or  corporation,  or  that  any  other  person  or  corpora- 
tion has  suffered  or  will  suffer  any  hardship  or  makes  any  complaint 
whatever  of  the  ordinance  or  its  provisions.  The  case  is  not  at  all 
like  one  where  a  license  is  required  for  carrying  on  an  occupation 
or  business,  where  the  inference  is  that  those  engaged  in  the  occupa- 
tion or  business  will  be  required  to  procure  the  license  and  pay  the 
fee  therefor.  The  bill  sets  up  conditions  respecting  these  complainants 
and  their  business  which  could  have  no  application  to  any  other  party, 
and  it  is  clear  that  the  controversy  is  between  the  two  complainants 
and  the  defendant.  There  is  nothing  in  the  bill  to  justify  the  assertion 
that  they  represent  a  class,  and  the  bill  shows  that  the  supposed  class 
is  not  numerous. 

Under  the  rule  that  equity  will  sometimes  intervene  to  prevent  a 
multiplicity  of  suits,  it  was  held  in  City  of  Chicago  v.  Collins,  175 
111.  445,  that  373  complainants,  suing  in  behalf  of  themselves  and  be- 
tween 200,000  and  300,000  other  similarly  situated,  could  maintain 
a  bill  to  enjoin  the  enforcement  of  an  ordinance  requiring  an  annual 
license  fee.  That  was  a  case  where  a  license  was  required  and  a  fee 
exacted  from  the  complainants  and  all  others  who  made  use  of  means 
of  travel  in  the  city  of  Chicago.  They  were  all  similarly  situated. 
The  case  of  Wilkie  v.  City  of  Chicago,  188  111.  444,  was  a  similar  one. 
In  that  case  78  complainants  filed  a  bill  in  behalf  of  themselves  and  900 
or  more  others  from  whom  the  city  of  Chicago  exacted  a  license  fee 
for  pursuing  their  occupation.  Another  case  where  it  was  held  that 
a  court  of  equity  might  properly  interfere  was  Spiegler  v.  City  of 
Chicago,  216  111.  114,  where  complainants,  on  behalf  of  themselves 
and  3000  or  4000  other  persons  engaged  in  the  same  business  as  them- 
selves, joined  in  a  bill  to  prevent  the  enforcement  of  an  ordinance 
licensing  and  regulating  that  business.  In  all  of  those  cases  there 
was  actual  application  of  the  ordinance  to  numerous  persons,  all  of 
whom  were  in  like  situations.  In  the  case  of  German  Alliance  Ins. 
Co.  V.  VanCleave,  191  111.  410,  42  corporations,  who  were  complainants, 
filed  a  bill  to  enjoin  the  defendant  from  paying  over  to  the  State 
Treasurer  moneys  collected  from  them  as  a  tax.     It  would  have  re- 


Cll.   10.)  BILI.S   OF  PEACE  171 

quired  at  least  forty-two  suits  to  accomplish  the  purpose  of  the  bill 
and  the  facts  and  law  in  each  case  would  have  been  exactly  the  same. 
It  was  held  that  the  case  was  a  proper  one  for  the  exercise  of  equitable 
powers.  In  the  case  of  North  American  Ins.  Co.  v.  Yates,  214  111. 
272,  a  bill  was  filed  by  the  insurance  superintendent  against  twenty 
companies  and  thirty-three  individuals  to  enjoin  them  from  transacting 
the  business  of  fire  insurance  without  complying  with  the  law.  It  was 
held  that  in  such  a  case  equity  might  interfere.  Plainly,  there  is  no 
similarity  between  those  cases  and  this  case  in  which  two  complainants, 
operating  in  different  parts  of  the  city  and  furnishing  practically  all 
the  street  railway  service  for  the  city  of  Chicago,  claim  the  right  to 
maintain  a  suit  in  equity  to  settle  the  question  of  the  validity  of  this 
ordinance  for  the  reason  that  there  are  other  persons  and  corpouations 
operating  lines  of  street  railway  in  outlying  districts,  where  perhaps 
the  difficulty  is  not  so  much  to  prevent  overcrowding  cars  as  to  fill 
them  with  passengers.  So  far  as  appears  from  the  bill,  the  only  real 
dispute  is  between  the  two  complainants  and  the  defendant,  and  the 
rights  and  interests  of  numerous  parties  are  not  involved. 

The  decree  of  the  circuit  court  is  reversed  and  the  bill  dismissed. 

Bill  dismissed. 


WILKIE  V.  CITY  OF  CHICAGO. 

(Supreme  Court  of  Illinois,  1900,  188  III.  444,  58  N.  E.  1004.) 

CartwrigiiT,  J.  .  .  .  The  first  question  raised  is  whether  the 
circuit  court  had  jurisdiction,  as  a  court  of  equity,  over  the  subject 
matter  of  the  bill.  That  jurisdiction  was  invoked  upon  the  following 
facts  averred  in  the  bill  and  admitted  by  the  demurrer.  The  seventy- 
nine  complainants  are  master  plumbers  in  the  city  of  Chicago,  and 
sue  on  behalf  of  themselves  and  all  others  similarly  situated.  There 
are  in  the  city  of  Chicago  nine  lumdred  or  more  master  plumbers, 
whose  interests  in  the  questions  involved  are  identical  and  each  of 
whom  is  liable  to  prosecution  under  the  provisions  which  are  alleged 
to  be  void.  The  city  has  made  demands  upon  complainants  to  take 
out  licenses  under  said  section,  and   threatened  them   with   arrest   if 


372  BILLS  OF  PEACE.  (Part.  3 

such  licenses  are  not  procured.  If  they  continue  to  engage  in  their 
avocation  the  city  will  put  its  threat  into  execution  and  they  will  be 
arrested  for  violation  of  the  ordinance.  Each  prosecution  would  in- 
volve the  same  right  claimed  by  the  city  against  each  of  them.  The 
city  would  not  be  civilly  liable  nor  held  responsible  for  damages  to 
complainants.  The  authorities  of  the  city  making  arrests  are  not 
financially  responsible  or  able  to  respond  in  damages.  If  the  master 
plumbers  should  pay  the  license  fee  and  bring  suits  to  recover  it,  there 
would  be  required  nine  hundred  or  more  suits  to  recover  money  il- 
legally obtained.  Complainants  are  threatened  with  arrest  as  often 
as  they  enter  any  premises  for  the  purpose  of  plying  their  trade,  and 
their  business  would  thereby  be  practically  destroyed. 

The  mere  allegation  that  an  ordinance  is  illegal  will  not  confer 
jurisdiction  upon  a  court  of  equity  to  restrain  its  enforcement,  but  the 
averments  of  the  bill  bring  this  case  within  the  rule  recognized  in 
City  of  Chicago  v.  Collins,  175  111.  445.  The  complainants  are  entitled 
to  join  in  a  suit  in  equity  for  the  purpose  of  avoiding  a  multiplicity  of 
suits  and  having  the  controversy  settled  in  one  hearing. 


GERMAN  ALLIANCE  INSURANCE  CO.  v.  VAN  CLEAVE. 

(Supreme  Court  of  Illinois,  1901,  191  111.  410,  61  N.  E.  94.) 

CarTwrighT,  I.  Appellants,  forty-two  corporations  organized 
under  the  laws  of  other  States  and  countries,  doing  fire  insurance 
business  in  this  State,  filed  their  bill  in  this  case  in  the  circuit  court 
of  Sangamon  county  against  appellees,  the  insurance  superintendent 
and  treasurer  of  this  State,  to  compel  said  insurance  superintendent 
to  refund  a  tax  of  two  per  cent  paid  by  complainants,  under  protest, 
upon  unearned  and  returned  premiums  for  the  year  1900.  and  to  en- 
join him  from  paying  over  to  the  State  Treasurer  the  tax  so  collected 
and  from  collecting  the  same  in  the  future,  and  to  enjoin  the  State 
Treasurer  from  receiving  said  tax.  A  temporary  injunction  was 
granted,  which  was  dissolved  upon  a  motion,  treated  as  a  demurrer, 
for  want  of  equity  upon  the  face  of  the  bill.  Complainants  elected  to 
abide  by  their  bill,  and  the  court  dismissed  it  at  their  costs. 

The  matter  in  controversy  is  the  proper  construction  of  the  act 
approved  April   19,   1899,  entitled  "An  act  providing  for  a  tax  on 


Cll,   10.)  BILLS   OF  PEACE  1 


—  o 

to 


gross  premium  receipts  of  insurance  companies  and  associations  other 
than  hfe."  (Hurd's  Stat.  1899,  p.  1042.)    That  act  provides  that  every 
insurance  company  of  the  class  to  which  complainants  belong  "shall 
at  the  time  of  making  the  annual  statements  as  required  by  law,  pay 
to  the  insurance  superintendent  as  taxes,  two  per  cent  of  the  gross 
amount  of  premiums  received  by  it  for  business  done  in  this  State, 
including  all  insurance  upon  property  situated  in  this   State,   during 
the  preceding  calendar  year,"  and  payment  of  said  taxes  is  made  a 
condition  precedent  to  doing  business  in  this  State.    There  is  a  proviso 
for  a  deduction  of  so  much  of  the  tax  as  shall  be  paid  to  cities  and 
villages  having  an  organized  fire  department,  but  the  proviso  neither 
increases  nor  diminishes  the  tax  and  does  not  affect  the  question  in- 
volved.    The  annual  statement  referred  to  is  a  statement  required  by 
law  of  the  condition  of  the  company  on  the  last  day  of  the  preceding 
calendar  year,  showing  its  capital  stock,  assets  and  liabilities,  as  well 
as  income  and  expenditures  of  the  preceding  year. 

The  facts  alleged  in  the  bill  and  admitted  for  the  purpose  of  the 
motion  are  as  follows :    The  complainants  severally  made  their  annual 
statements  for  the  year  1899  to  the  insurance  superintendent  on  or 
about  February  1,  1900,  and  stated  therein  the  gross  amount  of  pre- 
miums received  for  business  done  in  this  State  during  the  year  1899, 
according  to  their  understanding  of  the  law.     In  stating  such  amount 
they  omitted  the  premiums  returned  by  them  to  parties  insured,  upon 
cancellation  of   insurance  policies,   in  compliance   with  the  terms   of 
such  policies.     They  paid  over  to  the   insurance   superintendent   as 
taxes  two  per  cent  of  the  amounts   so   reported   and   received  their 
annual   certificates   of    authority   to   transact   business    in    this    State. 
Each  policy  of  insurance  which  was  cancelled  and  the  unearned  pre- 
mium returned,  provided,  when  issued,  that  it  might  be  cancelled  at 
any  time,  at  the  request  of  the  insured  or  the  option  of  the  insurer,  on 
five  days'  notice,  and  the  policy  should  become  void  and  the  risk  ended 
on  the  day  of  cancellation  and  the  unearned  premium  be  returned.  This 
was  the  usual  course  of  business  of  all  fire  insurance  companies  in 
the  State.    The  amount  returned  was  fixed  by  the  policy  and  was  based 
upon  the  amount  of  premium  earned  up  to  the  time  of  cancellation. 
The  money  returned  was  the  unearned  premium  for  the  period  after 
the  policy  was  cancelled  and  ceased  to  be  in  force.     The  insurance 
superintendent  made  demands  on  complainants  to  pay  a  tax  of  two 


174  BILLS  OF  PEACE.  (Part.  3 

per  cent  of  said  unearned  premiums  which  had  been  returned  upon 
the  cancellation  of  policies,  and  threatened  to  enforce  the  penalties 
provided  by  the  statute  and  to  revoke  the  authority  of  the  companies 
to  do  business  in  the  State  unless  his  demands  were  complied  with. 
The  complainants  then  paid,  under  protest,  the  several  amounts  so 
demanded,  which  are  severally  stated  in  the  bill,  and  amount  in  the 
aggregate  to  $15,984.87. 

Under  the  constitution  the  State  can  never  be  made  a  defendant 
in  any  court  of  law  or  equity,  and  it  is  argued  in  support  of  the  decree 
that  the  bill  cannot  be  maintained  because  the  insurance  superintend- 
ent is  an  officer  of  the  State,  and  therefore  the  suit  is  against  the 
State.  It  is  not  denied  that  the  State  may  specify  any  terms  or  con- 
ditions it  pleases  on  which  corporations  of  other  States  and  foreign 
countries  shall  be  permitted  to  transact  business  in  this  State.  The 
legislature  have  fixed  one  of  the  conditions  in  this  statute,  and  the 
only  question  involved  in  the  suit  is,  what  is  the  proper  construction 
of  the  act?  The  State  is  not  a  defendant  by  name,  and  the  suit  does 
not  relate  to  property  owned  by  the  State  or  which  has  ever  reached 
its  treasury.  There  is  no  attempt  to  recover  money  from  the  State, 
and  the  question  involved  is  whether  the  State  has  authorized,  by 
law,  the  insurance  superintendent  to  exact  the  tax.  A  suit  against 
him  is  not  dififerent,  in  any  respect,  from  a  suit  against  any  other  col- 
lector of  taxes,  and  a  party  is  not  precluded'  from  questioning  the 
unauthorized  act  of  a  tax  collector  or  other  officer  merely  because 
the  money  collected  will  eventually  reach  the  State. 

It  is  next  insisted  that  the  decree  is  right  because  each  of  the  com- 
plainants has  an  adequate  remedy  at  law,  by  suit  against  the  insurance 
superintendent  to  recover  the  amount  wrongfully  collected  from  it. 
At  least  forty-two  suits  would  be  necessary  to  accomplish  the  purpose 
and  to  give  to  each  complainant  its  legal  remedy,  and  the  question  in- 
volved in  each  case  would  be  exactly  the  same.  While  the  demand  is 
separate  in  each  case,  the  rights  of  the  parties  depend  upon  the  same 
facts.  Complete  relief  may  be  furnished  by  a  decree  determining  the 
single  question  applicable  to  all  and  in  which  all  are  interested.  The 
case  is  a  proper  one  for  an  application  of  equitable  powers.     .     .     . 


Hi.    10.)  BILLS   OF  PEACE  175 


COOK  V.  CARPENTER  (No.  1)  LIPPER'S  APPEAL. 

(Supreme  Court  of  Pennsylvania,  1905,  212  Pa.  165,  61  Atl.  799.) 

Mitchell,  C.  J.  The  preliminary  question  is  the  jurisdiction  in 
equity.  Appellants  insist  that  there  is  a  plain,  full  and  adequate 
remedy  at  law,  by  suits  against  the  several  stockholders  defendant, 
where  each  can  defend  upon  his  own  case  untrammeled  by  differences 
of  fact  in  the  others.  That  there  is  a  remedy  at  law  by  separate 
actions  against  the  respondents  is  undeniable,  but  is  it  a  full  and 
adequate  remedy  in  the  sense  that  it  bars  the  jurisdiction  of  equity? 

It  is  earnestly  argued  by  appellants  that  in  all  the  cases  where  a 
bill  has  been  sustained,  an  accounting  was  part  of  the  relief  sought, 
and  that  equitable  jurisdiction  attached  on  this  ground,  while  in  the 
present  case  no  accounting  is  asked,  as  the  bill  avers  that  the  whole 
unpaid  subscription  will  be  insufficient  to  pay  the  debts.  It  is  true 
that  the  necessity  for  an  account  is  a  large  and  influential  element  in 
equitable  relief,  but  we  do  not  find  it  said  in  any  of  the  cases,  that 
its  presence  or  absence  is  the  conclusive  jurisdictional  fact.  In  the 
present  case  the  bill  sets  up  facts  that  avoid  the  necessity  for  an 
accounting  and  an  assessment.  But  suppose  the  answer  had  denied 
the  averments  and  thus  made  the  necessity  of  an  accounting  and  as- 
sessment an  issue.  That  would  at  once  have  made  the  case 
one  cognizable  in  equity.  Citizens'  Bank  v.  Gillespie,  115  Pa.  564, 
was  an  action  at  law  in  which  such  necessity  was  part  of  the  issue, 
and  the  case  had  to  be  sent  to  a  new  trial  for  the  reception  of  in- 
competent evidence  on  that  point.  Whether  all  the  unpaid  capital  is 
required  for  payment  of  debts,  or  only  part,  and  if  so  how  much, 
are  matters  of  judgment  on  the  evidence,  and  different  juries  are 
likely  to  differ  in  their  conclusions.  The  result  would  be  that  in 
numerous  suits  by  the  assignees  some  stockholders  defendant  might 
have  to  pay  their  subscriptions  in  full  while  some  paid  only  part  and 
others  perhaps  nothing  at  all.  This  would  be  incurring  certain  incoti- 
venience  and  quite  probably  injustice,  where  the  relief  should  nol  only 
be  certain  but  uniform.  As  was  well  said  by  the  learned  judge  below 
"there  are  more  than  forty  defendants.  Most  of  them  live  within  the 
jurisdiction,  some  do  not,  and  it  is  quite  conceivable  that  llu're  might  be 


176  BILLS  OF  PEACE.  (Part.  3 

hundreds  living  without  the  jurisdiction  not  reachable  by  our  process  at 
law.  The  question  involved  in  all  the  cases  is  substantially  the  same 
namely,  ought  the  corporation  to  collect  in  its  unpaid  capital  ?  It  is  a  pure 
question  of  law,  and  may  be  decided  once  for  all  in  one  suit  as  well 
as  in  a  thousand.  If  the  balance  should  not  be  collected  from  all.  then 
it  ought  not  to  be  collected  from  any.  If,  on  the  other  hand,  it  should 
be  collected,  then  none  should  escape." 

In  the  absence  of  chancery  powers  in  our  courts,  equitable  relief 
was  afiforded  wherever  practicable,  in  common-law  forms.  When  later 
the  legislature  granted  equitable  powers  it  was  held  that  if  the  sub- 
ject of  a  bill  was  one  within  the  proper  and  established  jurisdiction  of 
chancery  the  invention  of  a  new  remedy  in  common-law  form,  or  the 
extension  of  an  old  one,  would  not  necessarily  oust  the  equitable  juris- 
diction :  Wesley  Church  v.  Moore,  10  Pa.  273.  The  question  in  such 
cases  turns  on  the  completeness,  adequacy  and  convenience  of  the 
remedy  at  law,  and  our  decisions  have  been  liberal  in  the  consideration 
of  all  these  elements:  Kirkpatrick  v.  McDonald,  11  Pa.  387;  Bier- 
bower's  Appeal,  107  Pa.  14;  Brush  Electric  Co.'s  Appeal,  114  Pa.  574; 
Johnston  v.  Price,  172  Pa.  427;  Gray  v.  Citizens'  Gas  Co.,  206  Pa. 
303.  In  the  last  case  it  was  said  by  our  Brother  Dean,  "The  question 
raised  in  this  case  is  not  alone  whether  plaintiff  has  a  remedy  at  law, 
for  that  remedy  it  clearly  has,  but  whether  in  view  of  the  facts  it 
is  an  adequate  one.  It  may  be  conceded  that  the  time  is  not 
very  remote  in  our  judicial  history  when  a  wronged  party  sought 
the  intervention  of  equity  and  he  could  be  truthfully  met  by  the  reply, 
you  have  a  remedy  at  law  in  an  action  for  damages,  such  reply  would 
have  been  the  end  of  his  bill ;  he  would  have  been  turned  out  of  court 
for  want  of  jurisdiction.  But  this  answer  is  no  longer  conclusive  as 
to  the  jurisdiction ;  courts  now  go  further  and  inquire  whether  under 
the  facts  the  remedy  at  law  is  not  vexatiously  inconvenient,  and 
whether  it  is  so  proximately  certain  as  to  be  adequate  to  right  the 
wrong  complained  of." 

Testing  by  this  standard  the  numerous  actions  that  would  be  re- 
quired at  law,  and  comparing  that  remedy  with  the  superior  certainty, 
uniformity  and  convenience  of  the  present  bill,  we  have  no  hesitation 
in  holding  that  it  is  a  proper  case  for  equitable  jurisdiction 


Ch.   10.)  BILLS   OF  PEACE  177 


WASHINGTON  COUNTY  v.  WILLIAMS. 

(United  States  Circuit  Court  of  Appeals,  1901,  111  Fed.  801.) 

Thayer,  J.     .     .     .     The  third  question  above  mentioned  concerns 
the  rights  of  the  complainants  in  the  equity  case  to  sue  in  equity,  and 
with  respect  to  that  question  it  is  to  be  first  observed  that  the  causes 
of  action  sued  upon  are  clearly  of  legal  cognizance.     The  actions  are 
founded  upon  a  promise  by  the  county  to  pay  a  certain  sum  annually 
out  of  a  fund  to  be  raised  by  the  levy  of  a  tax  of  one  mill  on  the  dol- 
lar on  all  property   situated  within  the  county  which   is   subject   to 
taxation.    This  promise,  however,  does  not  run  to  the  holders  of  the 
obligations  jointly,  so  as  to  compel  them  to  unite  in  a  suit  to  enforce 
it;  for  by  issuing  149  obligations,  each  payable  to  bearer,  and  by  re- 
citing therein,  in  substance,  that  the  sum  raised  annually  would  be  ap- 
portioned pro  rata  among  all  the  obligations,  the  county,  in  effect, 
promised  to  pay  to  each  holder  such  a  portion  of  the  fund  as  he 
was  entitled  to  receive.     No  reason  is  perceived  why  each  holder  of 
one  or  more  of  the  obligations  in  suit  may  not  sue  at  law,  as  one  of 
them  has  already  done,  and  obtain  a  judgment  for  the  sum  due  to 
himself,  by  proving  at  the  trial  what  sum  would  have  been  raised, 
and  what  part  thereof  would  have  been  payable  to  him,  had  the  tax 
been  levied.     Nor  do  we  perceive  that  the  remedy  in  equity  is  any 
more  efficacious  than  at  law.     All  that  a  court  of  equity  can  do  is  to 
determine  the  validity  of  the  obligations,  and  render  a  money  decree 
for  the  amount  of  the  annual  installments  then  due  and  unpaid.     As 
much  can  be  done  by  a  court  of  law,  and  with  equal  facility.     More- 
over, after  the  validity  of  the  obligations  has  been  established,  and 
a  judgment  obtained,  resort  must  then  be  had  to  a  legal  remedy,  to 
wit,  a  writ  of  mandamus,  to  compel  the  levy  of  a  tax  to  pay  the  judg- 
ment, whether  it  be  recovered  at  law  or  in  equity,  since  it  is  a  well- 
settled  doctrine  in  the  federal  courts  that  a  court  of  equity  cannot 
command  the  levy  of  a  tax;  that  being  a  duty  which  the  legislature 
must  impose;  the   sole   function   of   the  courts  being  to   enforce   its 
performance   by   mandamus    when    it    has    been    imposed.     Heine   v. 
Levee  Com'rs,  86  U.  S.  655,  22  L.  Ed.  223;  Rces  v.  City  of  Water- 

3  Eq— 12! 


178  BILLS  OF  PEACE.  (Pai't.    3 

town,  86  U.  S.  107,  22  L.  Ed.  72;  vStryker  v.  Board,  23  C.  D.  A.  286, 
292,  77  Fed.  567.  The  argument  in  support  of  the  right  of  the  hond- 
holders  to  unite  and  sue  in  equity  on  all  of  the  obligations,  in  its  last 
analysis,  results  in  this  proposition :  That  whenever  several  persons 
have  distinct  or  several  demands  against  the  same  person  or  corpora- 
tion, growing  out  of  contract,  they  may,  for  the  purpose  of  avoiding 
multiplicity  of  suits,  unite  and  sue  in  equity  to  enforce  the  payment 
thereof,  provided  their  several  demands  were  incurred  by  the  defend- 
ant at  the  same  time  and  in  the  same  manner,  and  provided  that  the 
defendant  interposes  or  threatens  to  interpose  the  same  defense  there- 
to. This  proposition,  in  our  judgmnt,  is  not  sustained  by  any  well- 
considered  decision.     ... 

It  is  obvious  that,  if  the  proposition  contended  for  by  the  com- 
plainants in  the  equity  case  is  tenable,  then  the  holders  of  municipal 
bonds  may  always  unite  and  sue  in  equity  if  the  municipality  repudiates 
its  obligations,  on  the  pretense  that  by  so  doing  a  multiplicity  of  suits 
will  be  avoided.  Such  a  practice,  however,  has  never  obtained  or  been 
attempted,  although  actions  upon  such  bonds  have  been  very  numerous, 
except  in  the  instance  above  above  cited,  where  the  jurisdiction  in 
equity  was  emphatically  denied.  As  bearing  incidentally  on  the  point 
now  under  consideration,  it  may  be  further  observed  that  in  several 
cases  before  the  supreme  court  where  the  question  of  jurisdiction,  in 
view  of  the  amount  in  controversy  was  involved,  that  court  has  inferen- 
tially  recognized  the  right  of  several  persons  having  distinct  interests  to 
unite  in  an  appeal  on  grounds  of  convenience,  provided  their  rights 
or  liabilities  grow  out  of  the  same  transaction  and  give  rise  to  the 
same  questions.  But  in  such  cases  litigants  have  never  been  permitted 
to  aggregate  their  claims  for  the  purpose  of  making  up  the  amount 
necessary  to  confer  jurisdiction  unless  they  were  able  to  show  a  common 
and  undivided  interest  in  the  subject-matter  of  the  litigation.     .     .     . 

Persons  holding  distinct  claims  arising  out  of  contract,  which  may 
be  reduced  to  judgment  at  law  without  difficulty,  should  not  be  al- 
lowed to  aggregate  them  and  sue  in  equity,  even  if  they  do  grow  out 
of  the  same  transaction  and  involve  the  same  questions,  and  even 
though  a  multiplicity  of  actions  would  thereby  be  avoided.  If  such 
a  practice  was  tolerated,  the  boundaries  of  the  jurisdiction  of  courts 
of  law  and  equity  would  soon  become  confused  or  obliterated. 


oil.    10.)  BILLS    OF  PEACE  179 

The  result  is  that  the  bill  in  the  equity  case  was  properly  dismissed 
for  want  of  jurisdiction  in  equity,  but  such  dismissal  should  have  been 
without  prejudice  to  the  complainants'  right  to  sue  at  law.     .     .     . 


VIRGINIA-CAROLINA  CHEMICAL  CO.  v.  HOME  INS.  CO.  OF 

NEW  YORK. 

(United  States  Circuit  Court  of  Appeals,  1902,  113  Fed.  1.) 

Jackson,  District  Judge.  ...  A  bill  was  filed  by  the  Home  In- 
surance Company  of  New  York  and  the  German- American  Insurance 
Company  of  New  York  against  the  Virginia-Carolina  Chemical  Com- 
pany and  14  insurance  companies,  who  were  made  defendants  to  the 
bill.  The  defendant  the  Virginia-Carolina  Chemical  Company  had 
prior  to  the  filing  of  this  bill  instituted  actions  at  law  in  the  court  of 
common  pleas  of  Charleston  county,  S.  C,  against  each  and  all  of  its 
codefendants.  Motions  were  made  in  each  case  before  that  court  to 
transfer  the  several  cases  to  the  circuit  court  of  the  United  States  for 
the  district  of  South  Carolina,  which  were  overruled,  and  the  court 
retained  the  cases.     .     .     . 

The  object  and  purpose  of  this  bill  is  to  restrain  the  defendant  in- 
surance companies  from  the  prosecution  of  these  suits  on  the  law 
side  of  the  United  States  court,  as  well  as  elsewhere,  to  avoid  a  mul- 
tiplicity of  suits,  and  to  have  the  cases  all  heard  before  the  federal 
tribunal.  The  validity  of  these  various  policies  of  insurance  is  assailed 
for  the  reason  that  they  were  procured  by  fraud,  misrepresentation, 
and  concealment  of  the  true  value  of  the  property  insured;  that  the 
representations  of  the  insured  as  to  the  value  of  the  property  were 
largely  in  excess  of  its  value;  that  the  various  insurance  companies, 
relying  upon  the  good  faith  of  the  Virginia-Carolina  Chemical  Com- 
pany, issued  the  policies  upon  the  representation  made  ])y  the  defend- 
ant company.     .     .     . 

The  main  object  and  purpose  of  this  bill  is  to  prevent  a  iiiuUiplicity 
of  suits,  all  involving  the  same  legal  questions,  founded  upon  similar 
issues  of  fact;  and  for  this  reason  in  its  nature  it  is  ancillary  to  the 
actions  at  law.  All  the  suits  brought  by  the  Virginia-Carolina  Chem- 
ical Company  against  the  various  defendants  seek  to  litigate  the  same 


180  BILLS  OF  PEACE.  (Part.  3 

legal  right,  and  the  legal  liability  of  the  defendant  companies,  if  any 
there  be,  is  the  same ;  the  only  difference  being  the  amounts  involved 
in  the  various  policies.  The  plaintiff,  the  Virginia-Carolina  Chemical 
Company,  in  the  actions  at  law  sets  up  a  common  demand  against  all 
the  defendants.  The  object  and  purpose  of  this  bill  is  to  determine 
the  liability  of  the  different  defendants  in  a  court  of  conscience,  and, 
if  the  court  should  reach  the  conclusion  that  there  is  a  liability  on  each 
of  the  policies  mentioned,  then  the  question  would  be,  what  is  the 
extent  of  the  liability?  It  is  apparent  from  the  policies  in  this  case 
that,  if  there  is  any  liability  at  all,  then  under  the  condition  of  the 
various  policies  the  same  must  be  apportioned,  and  in  order  to  do  that 
a  reference  should  be  made  to  a  master  to  ascertain  the  amount  of 
liability  upon  each  policy.  But,  if  the  court  should  reach  the  con- 
clusion that  these  policies  were  issued  upon  a  false  state  of  facts 
as  to  the  value  of  the  property  insured,  and  that  the  insured  could  not 
recover  upon  them,  then,  under  the  terms  and  conditions  of  the 
policies,  a  court  of  equity,  in  the  exercise  of  its  powers,  would  enjoin 
the  plaintiff*  on  the  law  side  of  the  court  from  the  further  prosecution 
of  its  demands.     .     .     . 

The  question  presented  by  the  demurrer  in  this  case  is  whether  or 
not  all  the  defendants  can  be  joined  in  one  suit.  This  bill  upon  its 
face  alleges  that  the  defendants  have  a  common  interest  in  the  ques- 
tions involved,  though  their  liability  may  be  different.  If  it  appeared 
from  the  face  of  the  bill  that  there  was  not  a  common  interest  in  the 
subject  of  litigation,  and  that  there  was  no  connection  the  one  with 
the  other,  then  the  exception  taken  to  the  bill  should  be  sustained. 
But,  as  we  have  seen,  all  the  defendant  insurance  companies  have  a 
common  interest  in  defeating  the  claims  of  one  party,  the  plaintiff  in 
the  actions  at  law.  On  one  side  is  the  Virginia-Carolina  Chemical 
Company,  the  plaintiff  in  the  actions  at  law,  while  on  the  other  side 
are  the  14  insurance  companies,  who.  deny  their  hability  to  the  Vir- 
ginia-Carolina Chemical  Company  upon  their  policies  of  insurance.    .    . 


HOLLAND  V.  CHALLEN. 

(United  States  Supreme  Court,  1883,  110  U.  S.  15.) 

Field,  J.     This  is  a  suit  in  equity  to  quiet  the  title  of  the  plaintiff 
to  certain  real  property  in  Nebraska  as  against  the  claim  of  the  de- 


Cll.   10.)  BILLS   OF  PEACE  181 

fendant  to  an  adverse  estate  in  the  premises.  It  is  founded  upon  a 
statute  of  that  State  which  provides :  "That  an  action  may  be  brought 
and  prosecuted  to  final  decree,  judgment,  or  order  by  any  person  or 
persons,  whether  in  actual  possession  or  not,  claiming  title  to  real 
estate,  against  any  person  or  persons  who  claim  an  adverse  estate  or 
interest  therein,  for  the  purpose  of  determining  such  estate  or  in- 
terest and  quieting  the  title  to  such  real  estate." 

The  bill  alleges  that  the  plaintifif  is  the  owner  in  fee  simple  and 
entitled  to  the  possession  of  the  real  property  described.  It  then 
sets  forth  the  origin  of  his  title,  particularly  specifying  the  deeds  by 
which  it  was  obtained,  and  alleges  that  the  defendant  claims  an  ad- 
verse estate  or  interest  in  the  premises ;  that  the  claim  so  affects  his 
title  as  to  render "  a  sale  or  other  disposition  of  the  property  im- 
possible, and  that  it  disturbs  him  in  his  right  of  possession.     .     .     . 

A  bill  of  peace  against  an  individual  reiterating  an  unsuccessful 
claim  to  real  property  would  formerly  lie  only  where  the  plaintiff  was 
in  possession  and  his  right  had  been  successfully  maintained.  The 
equity  of  the  plaintiff  in  such  cases  arose  from  the  protracted  litiga- 
tion for  the  possession  of  the  property  which  the  action  or  ejectment 
at  common  law  permitted.  That  action  being  founded  upon  a  fic- 
titious demise,  between  fictitious  parties,  a  recovery  in  one  action  con- 
stituted no  bar  to  another  similar  action  or  to  any  number  of  such 
actions.  A  change  in  the  date  of  the  alle;ged  demise  was  sufficient  to 
support  a  new  action.  Thus  the  party  in  possession,  though  success- 
ful in  every  instance,  might  be  harassed  and  vexed,  if  not  ruined, 
by  a  litigation  constantly  renewed.  To  put  an  end  to  such  litigation 
and  give  repose  to  the  successful  party,  courts  of  equity  interfered 
and  closed  the  controversy.  To  entitle  the  plaintiff  to  relief  in  such 
cases,  the  concurrence  of  three  particulars  was  essential:  He  must 
have  been  in  possession  of  the  property,  he  must  have  been  dis- 
turbed in  its  possession  by  repeated  actions  at  law,  and  he  must  have 
established  his  right  by  successive  judgments  in  his  favor.  Upon  these 
facts  appearing,  the  court  would  interpose  and  grant  a  perpetual  in- 
junction to  quiet  the  possession  of  the  plaintiff  against  any  further 
litigation  from  the  same  source.  It  was  only  in  this  way  that  adequate 
reHef  could  be  afforded  against  vexatious  litigation  and  the  irreparable 
mischief  which  it  entailed.  Adams  on  I^/quity,  202;  Pomeroy's  Equity 
Jurisprudence,  vSec.  248;  Stark  v.  Starrs,  6  Wall.  402;  Curtis  v.  Sutter, 


182  BILLS  OF  tEACE.  (Part,  n 

15  Cal.  259;  Shepley  v.  Rangeley,  2  Ware,  242;  Devonsher  v.  Newen- 
ham,  2  Schoales  &  Lef.  199. 

In  most  of  the  States  in  this  countr} ,  and  Nebraska  among  them, 
the  action  of  ejectment  to  recover  the  possession  of  real  property  as 
existing  at  common  law  has  been  abolished  with  all  its  fictions.  Actions 
for  the  possession  of  such  property  are  now  not  essentially  different 
in  form  from  actions  for  other  property.  It  is  no  longer  necessary  to 
allege  what  is  not  true  in  fact  and  not  essential  to  be  proved.  The 
names  of  the  real  contestants  must  appear  as  parties  to  the  action,  and 
it  is  generally  sufficient  for  the  plaintiff  to  allege  the  possession  or 
seizin  by  him  of  the  premises  in  controversy,  or  of  some  estate  therein, 
on  some  designated  day,  the  subsequent  entry  of  the  defendant,  and  his 
withholding  of  the  premises  from  the  plaintiff ;  and  although  the  plain- 
tiff may  in  such  cases  recover,  when  a  present  right  of  possession  is 
established,  though  the  ownership  be  in  another,  yet  such  right  may 
involve,  and  generally  does  involve,  a  consideration  of  the  actual  own- 
ership of  the  property ;  and  in  such  Lases  the  judgment  is  as  much  a 
bar  to  future  litigation  between  the  parties  with  respect  to  the  title 
as  a  judgment  in  other  actions  is  a  bar  to  future  litigation  upon  the 
subjects  determined.  Where  this  new  form  of  action  is  adopted,  and 
this  rule  as  to  the  effect  of  a  judgment  therein  obtains,  there  can  be 
no  necessity  of  repeated  adjudications  at  law  upon  the  right  of  the 
plaintiff  as  a  preliminary  to  his  invoking  the  jurisdiction  of  a  court  of 
equity  to  quiet  his  possession  against  an  asserted  claim  to  the  property. 

A  bill  quia  timet,  or  to  remove  a  cloud  upon  the  title  of  real  estate, 
differed  from  a  bill  of  peace  in  that  it  did  not  seek  so  much  to  put  an 
end  to  vexatious  litigation  respecting  the  property,  as  to  prevent  future 
litigation  by  removing  existing  causes  of  controversy  as  to  its  title.  It 
was  brought  in  view  of  anticipated  wrongs  or  mischiefs,  and  the  juris- 
diction of  the  court  was  invoked  because  the  party  feared  future  in- 
jury to  his  rights  and  interests.  Story's  Equity,  Sec.  826.  To  main- 
tain a  suit  of  this  character  it  was  generally  necessary  that  the  plaintiff 
should  be  in  possession  of  the  property,  and,  except  where  the  defend- 
ants were  numerous,  that  his  title  should  have  been  established  at  law 
or  be  founded  on  undisputed  evidence  or  long  continued  possession. 
Alexander  v.  Pendelton,  8  Cranch,  462 ;  Peirsoll  v.  Elliott,  6  Pet.  95 ; 
Orton  V.  Smith,  18  How.  263. 

The  statute  of  Nebraska  authorizes  a  suit  in  either  of  these  classes 
of  cases  without  reference  to  any  previous  judicial  determination  of 


(,'ll.   10.)  BILLS   OF  PEACE  181? 

the  validity  of  the  plaintiff's  right,  and  without  reference  to  his  posses- 
sion. Any  person  claiming  title  to  real  estate,  whether  in  or  out  of 
possession,  may  maintain  the  suit  against  one  who  claims  an  adverse 
estate  or  interest  in  it,  for  the  purpose  of  determining  such  estate  and 
quieting  the  title. 

It  is  certainly  for  the  interest  of  the  State  that  this  jurisdiction  of 
the  court  should  be  maintained,  and  that  causes  of  apprehended  liti- 
gation respecting  real  property,  necessarily  aft'ecting  its  use  and  en- 
joyment, should  be  removed;  for  so  long  as  they  remain  they  will 
prevent  improvement  and  consequent  benefit  to  the  public.     It   is  a 
matter  of  every-day  observation  that  many  lots  of  land  in  our  cities 
remain  unimproved  because  of  conflicting  claims  to  them.    The  rightful 
owner  of  a  parcel  in  this  condition  hesitates  to  place  valuable  improve- 
ments upon  it,  and  others  are  unwilling  to  purchase  it,  much  less  to 
erect  buildings  upon  it,  with  the  certainty  of  litigation  and  possible  loss 
of  the  whole.     And  what  is  true  of  lots  in  cities,  the  ownership  of 
which  is  in  dispute,  is  equally  true  of  large  tracts  of  land  in  the  country. 
The  property  in  this  case,  to  quiet  the  title  to  which  the  present  suit 
is  brought,  is  described  in  the  bill  as  unoccupied,  wild,  and  unculti- 
vated land.     Few  persons  would  be  willing  to  take  possession  of  such 
land,  enclose,  cultivate  and  improve  it,  in  the  face  of  a  disputed  claim 
to  its  ownership.     The  cost  of  such  improvements  would  probably  ex- 
ceed the  value  of  the  property.    An  action  for  ejectment  for  it  would  not 
lie,  as  it  has  no  occupant ;  and  if,  as  contended  by  the  defendant,  no 
relief  can  be  had  in  equity  because  the  party  claiming  ownersip  is  not 
in  possession,  the  land  must  continue  in  its  unimproved  condition.     It 
is  manifestly  for  the  interest  of  the  community  that  conflicting  claims 
to  property  thus  situated  should  be  settled,  so  that  it  may  be  subjected 
to  use  and  improvement.     To  meet  cases  of  this  character,  statutes, 
like  the  one  of  Nebraska,  have  been  passed  by  several  States,  and  they 
accomplish  a  most  useful  purpose.    And  there  is  no  good  reason  why 
the  riglit  to  relief  against  an  admitted  obstruction  to  the  cultivation, 
use,  and  improvement  of  lands  thus  situated  in  tlie  States  should  not 
be  enforced  by  the  federal  courts,  when  t4ie  controversy  to  which  it 
may  give  rise  is  between  citizens  of  different  States.     .     .     . 


184  BILLS  OF  PEACE.  (Part.  3 


WOODWARD  V.  SEELY. 

(Supreme  Court  of  Illinois,  1849,  11  111.,  157.) 

Trumbull,  J-  This  bill  was  filed  to  restrain  the  defendants  from 
prosecuting  certain  actions  which  they  had  commenced,  and  perpetually 
to  enjoin  them  from  instituting  others,  to  recover  damages  for  the 
overflow  of  their  lands ;  the  complainants  alleging  that  said  overflow 
was  by  the  license  and  permission  of  the  defendants  and  occasioned 
by  the  erection  of  a  mill-dam  upon  their  own  land,  which  they  had  been 
at  great  expense  in  constructing.  None  of  the  actions  at  law  had  been 
disposed  of,  when  the  bill  was  filed,  though  several  were  then  pending, 
and  the  defendants  were  continuing  to  commence  them  at  intervals  of 
every  few  days. 

Can  this  bill  be  maintained?  We  think  not.  There  is  no  instance 
in  which  a  bill  of  peace,  where  the  parties  were  not  numerous,  has  been 
sustained,  to  prevent  multiplicity  of  actions  at  law,  before  the  rights 
of  the  parties  have  been  settled  in  a  Court  of  law.  The  principle  that  a 
party  cannot  come  into  equity  to  enforce  his  rights,  when  he  has  a  full 
and  complete  remedy  at  law,  is  too  familiar  to  require  the  citing  of 
authorities  to  support  it.  The  license  in  this  case,  if  valid  and  effectual, 
constitutes  a  complete  defense  at  law ;  and  until  that  defense  has  been 
established,  and  the  defendants  continue  afterwards  to  harass  the  com- 
plainants by  vexatious  suits,  chancery  has  no  jurisdiction  in  the  matter. 
Eldridge  V.  Hill,  2  John.  Ch.,  281 ;  West  v.  Mayor,  &c..  New  York,  10 
Paige  539.     ... 


SYLVESTER  COAL  CO.  v.  CITY  OF  ST.  LOUIS. 

(Supreme  Court  of  Missouri,  1895,  130  Mo.  323,  33  S.  W.  649.) 

Brace,  P.  J.  This  is  an  appeal  from  a  judgment  of  the  circuit 
court  of  the  city  of  St.  Louis,  sustaining  a  demurrer  to  plaintiff's 
petition.  The  material  allegations  of  the  petition  are,  that  the  plain- 
tiffs, the  Sylvester  Coal  Company,  The  Berry-Horn  Coal  Company, 
The  St.  Louis  Fuel  Company  and  the  Lebanon  Machine  Association, 


Ch.   10.)  *        BILLS   OF  PEACE  ISo 

are,  respectively,  corporations  created  under  the  laws  of  the  state  of 
Missouri  and  engaged  in  the  business  of  selling  and  delivering  coal 
by  the  wagon  load,  to  be  used  as  fuel  in  the  city  of  St.  Louis ;  that  they 
are  licensed  merchants  and  have  paid  their  tax  as  such ;  that  each  of 
the  plaintiffs  maintained  in  its  business  a  private  scale,  on  which  all 
coal  sold  and  delivered  is  weighed,  the  weigher  of  which  has  been 
approved  by  the  mayor,  taken  an  oath  before  the  city  register,  and  filed 
bond  as  required  as  weigher  at  public  scales ;  that  fifty  other  persons 
or  corporations  are  engaged  in  the  same  business  in  like  manner ;  that 
the  city  has  adopted  and  there  are  now  ordinances  in  force  in  said  city 
as  follows :     .     .     . 

That  said  sections  1594  and  1608,  aforesaid,  are  invalid  and  of  no 
force  or  effect,  because  the  system  established  by  them  constitutes  a 
tax  on  sales  and  deliveries  of  coal  in  St.  Louis  for  fuel,  and  exacts 
three  cents  for  each  load  so  sold  and  delivered,  which  sum  is  paid  into 
the  treasury  of  the  city  of  St.  Louis ;  because  said  system  is  an  unlawful 
interference  with  and  burden  on  the  sale  and  delivery  of  coal  as  fuel 
in  St.  Louis ;  because  said  system  is  unauthorized  by  the  charter  of  St. 
Louis  and  the  law  of  the  land ;  because  said  system  and  said  ordinance 
regLilations  are  unreasonable  and  oppressive;  because  said  regulation 
requiring  a  green  ticket  to  be  delivered  with  each  load  of  coal  adds 
no  security  to  the  purchaser  as  to  the  weight  of  the  coal  delivered,  nor 
does  it  operate  or  constitute  any  check  on  the  seller  of  the  coal  as  to 
such  weight;  that  the  expense  to  each  of  these  plaintiffs  for  green 
tickets  so  to  be  used  by  it  respectively  and  purchased  of  the  city  of  St. 
Louis,  exceeds  $150  annually;  that  the  said  defendants  the  city  of  St. 
Louis  and  the  mayor  thereof,  nothwithstanding  the  manifest  illegality 
of  said  ordinance  have  thereafterwards  published  and  declared  that 
they  will  enforce  the  observance  of  the  provisions  thereof.  Wherefore 
they  pray  that  they  and  their  servants  be  restrained  from  so  doing. 

1.  The  demurrer  is  general,  and  the  only  question  to  be  considered 
is  whether  the  facts  stated  are  sufficient  to  entitle  the  plaintiffs  to 
the  relief  sought.  It  is  contended  that,  though  it  be  conceded  that  the 
ordinances  are  invalid,  the  plaintiffs  are  not  entitled  to  injunctive  relief 
on  the  facts  stated,  for  the  reason  that  they  have  an  adequate  remedy 
at  law. 

But  is  the  remedy  at  law  adequate?  It  must  be  remembered  ihal  the 
injury  complained  of  here  is  continuous.  The  ordinances  are  continuous, 
and  plaintiffs'  business  is  continuous,  and,  under  the  ordinances,  for 


1S6  Bii>Ls  OF  PEACE.         '  (Part.  3 

each  wagon  load  of  coal  sold  and  delivered  in  violation  of  the  restric- 
tive provisions  thereof  the  plaintiffs  each  become  subject  to  an  action 
in  the  municipal  courts  of  the  city  for  such  violation.  The  fact  that 
in  each  of  such  suits  the  plaintiffs  might  plead  successfully  the  in- 
validity of  the  ordinances  as  a  defense  thereto,  does  not  give  them  an 
vexation  and  annoyance  of  such  a  multiplicity  of  suits  in  consequence 
adequate  remedy.  They  are  entitled  to  be  protected  from  the  expense, 
of  their  continuance  of  a  legitimate  business  except  upon  compliance, 
with  the  condition  of  ordinances  which  it  is  alleged  are  and  may  be 
utterly  void.  Mayor,  etc.,  v.  Radecke,  49  Md.  217;  Davis  v.  Fasig, 
128  Ind.  271 ;  Rushville  v.  Rushville  Natural  Gas  Co.,  132  Ind.  575 ; 
Third  Ave.  R.  R.  Co.  v.  Mayor,  etc.,  54  N.  Y.  159. 

"The  prevention  of  vexatious  litigation  and  of  a  multiplicity  of 
suits  constitutes  a  favorite  ground  for  the  exercise  of  the  jurisdiction 
of  equity  by  way  of  injunction."  High,  Injunctions  (3  Ed.),  p.  12. 
This  has  been  frequently  recognized  as  a  ground  for  the  exercise  of 
such  jurisdiction  in  this  state.  Swope  v.  Weller,  119  Mo.  556;  Michael 
V.  St.  Louis,  112  Mo.  610;  Carroll  v.  Campbell,  108  Mo.  558.  And  is 
an  independent  ground  of  equity  jurisdiction  upon  which  such  courts 
may  interfere  to  prevent  municipal  authorities  from  transcending 
their  powers.  2  Dillon,  Mun.  Corp.  (4  Ed.),  sees.  906  and  908;  and 
cases  cited  above. 

While  under  the  former  system  of  jurisprudence,  in  which  relief 
in  equity  was  administered  by  a  different  tribunal  and  by  a  different 
procedure  from  those  that  gave  relief  at  law,  courts  of  equity  have 
sometimes  refused  to  interfere  before  the  right  was  established  at  law 
(West  V.  Mayor,  etc.,  10  Paige,  539),  there  seems  no  good  reason, 
under  the  present  system  in  code  states  where  both  are  blended,  why 
such  relief  should  not  be  granted  in  the  first  instance  by  injunction ; 
and  so  it  was  ruled  in  the  analogous  cases  of  Mayor,  etc.,  v.  Radecke; 
Davis  V.  Fasig,  and  Rushville  v.  Rushville  Nat.  Gas.  Co.,  above 
cited,  which  are  on  all  fours  with  the  case  in  hand.  And  so  it  would 
seem  it  must  be  ruled  here,  where  we  have  in  addition  a  special  and 
liberal  statutory  provision  in  regard  to  injunction.  R.  S.  1889,  sec. 
5510. 

The  doctrine  that  criminal  statutes  can  not  be  tested  or  their  en- 
forcement restrained  in  the  civil  courts  has  no  application  to  the  case. 
Municipal  ordinances,  though  penal,  are  not  criminal  statutes.  City 
of  Kansas  v.  Clark,  68  Mo.  588;  Ex  Parte  HoUwedell,  74  Mo.  395; 


oil.   10.)  BILLS   OF  PEACE  1S7 

St.  Louis  V.  Marchell,  99  Mo.  475.     They  are  quasi  criminal  in  form, 
but  not  so  regarded  in  procedure. 

We  think  the  petition  presents  a  case  in  which  the  vahdity  of  thr 
ordinances  may  be  inquired  into  by  a  court  of  equity,  and  if  found  tc 
be  invahd.  the  relief  prayed  for  may  be  granted.     .     .     . 


GALVESTON,  H.  &  S.  A.  RY.  CO.  v.  DOWE. 

(Supreme  Court  of  Texas,  1888,  70  Tex.  5,  7  S.  W.  368.) 

Gaines,  J.  This  suit  was  brought  in  the  court  below  by  appellant 
against  appellee  for  the  purpose  of  enjoining  the  latter  from  collecting 
a  certain  judgment  rendered  in  the  county  court  of  Maverick  county, 
and  from  bringing  separate  suits  on  certain  claims  against  the  appellant. 
The  question  of  the  power  of  the  district  court  to  enjoin  the  judgment 
of  the  county  court  is  settled  by  the  opinion  in  the  case  between  the 
same  parties  delivered  by  the  commissioners  and  adopted  by  this  court 
at  the  present  term.  See  Railway  Co.  v.  Dowe,  6  S.  W".  Rep.  790.  Tn 
regard  to  the  claims  upon  which  suits  are  sought  to  be  enjoined,  the 
petition  alleges  in  substance  that  in  the  year  1882  certain  contractors 
on  the  company's  road  issued  to  their  laborers  a  large  number  of 
written  obligations,  known  as  "Contractors'  Time-Checks,"  which  had 
been  indorsed  by  the  payees- in  blank  and  assigned  by  them;  and  that 
defendant,  Dowe,  was  the  holder  of  about  30  of  these,  for  amounts 
ranging  from  $5  to  $30,  and  aggregating  about  the  sum  of  $1,000.  It  is 
also  alleged,  that  these  claims  were  assigned  solely  by  the  contractors, 
and  that  the  plaintiff  was  not  a  party  to  them  in  any  sense,  and  was 
not  liable  for  their  payment,  and  further  that  they  were  barred  by  the 
statute  of  limitations,  but  that  defendant  had  instituted  suits  upon  sim- 
ilar demands  against  plaintiff  alone  in  the  justice  court,  and  had  ob- 
tained judgment  on  them,  and  had  threatened  to  bring  in  the  same 
court,  one  suit  for  each  month  upon  one  of  the  claims  until  all  were 
sued  on.  The  averments  of  the  petition  show  a  perfect  defense  to 
the  claims;  that  this  defense  was  set  U])  in  each  of  the  suits  brought 
in  the  justice  court ;  and  that  appellant  moved  to  consolidate  the  actions ; 
but  that  the  court  refused  the  motion,  and  notwithstanding  its  defenses 
gave  judgment  in  every  instance  against  it.     It  also  appeared  from  the 


188  BILLS  OF  PEACE.  (Part,  o 

petition  that  in  each  case,  except  one,  the  amount  in  controversy  was 
less  than  $20,  and  hence  there  was  no  appeal.  In  the  one  case  the 
amount  was  less  than  $100,  and  therefore  the  judgment  of  the  county 
court  in  that  suit  was  final.  An  exception  to  appellant's  petition  was 
sustained,  and  its  suit  dismissed ;  and  this  it  assigns  as  error. 

It  is  said  that  the  prevention  of  a  multiphcity  of  suits  is  a  favorite 
ground  for  the  interposition  of  a  court  of  equity;  but  it  appears  from 
an  examination  of  the  authorities  that  the  application  and  limits  of 
the  doctrine  are  not  well  defined.  It  had  its  beginning  in  the  bill  of 
peace,  a  remedy  rendered  necessary  by  the  principle  of  the  common 
law  that  a  judgment  in  an  action  of  ejectment  in  favor  of  the  defend- 
ant was  not  conclusive  and  did  not  estop  the  plaintifif  from  bringing 
successive  suits  upon  the  same  cause  of  action.  In  order  to  relieve 
a  defendant  from  vexatious  htigation,  after  a  judgment  at  law  in  his 
favor,  the  court  of  chancery  permitted  him  to  file  his  bill,  and  by  its 
decree  to  preclude  the  plaintiff  from  vexing  him  with  any  further 
suit.  The  principle  has  been  extended  to  cases  where  a  great  number 
of  parties,  having  a  common  cause  of  action  against  one,  growing  out 
of  the  same  injury  and  depending  upon  the  same  questions  of  law  and 
fact;  and  they  have  been  permitted  to  join  in  the  same  action  in  order 
to  prevent  a  multiplicity  of  suits.  This  rule  was  applied  in  this  court 
in  Blessing  v.  City  of  Galveston,  42  Tex.  641.  and  in  George  v.  Dean, 
47  Tex.  7Z.  Also,  where  numerous  persons  have  claims  of  the  same 
character  growing  out  of  the  same  alleged  wrong  against  one,  a  bill 
will  be  in  his  favor  against  all  the  claimants  to  settle  all  the  demands 
in  the  same  suit.  Water-Works  v.  Yeamans,  L.  R.  2  Ch.  8.  It  is  also 
laid  down  that  where  one  party  holds  several  claims  against  another, 
growing  out  of  the  same  or  similar  transactions,  and  depending  for 
their  determination  upon  the  same  question  of  law  and  fact,  equity  will 
enjoin  separate  suits  upon  the  demands,  provided  one  suit  has  been 
tried  and  determined  in  favor  of  the  complainant  in  the  bill.  1  High, 
Inj.  sec.  63  et  seq. ;  1  Pom.  Eq.  Jur.  sec.  254  et  seq.  In  West  v.  Mayor, 
10  Paige,  539,  a  multiplicity  of  suits  were  sought  to  be  enjoined,  and 
the  bill  showed  that  in  a  suit  upon  one  of  the  demands,  the  judgment 
had  been  against  the  complainant  in  the  justice  court,  and  he  had  ap- 
pealed. The  chancellor  dissolved  the  injunction  and  said:  "It  is  true 
that  they  complain  that  in  those  cases  the  court  decided  the  law  against 
them,  and  did  not  submit  the  legality  of  the  ordinances  to  the  jury  to 
be  decided  as  a  matter  of  fact,  and  that  they  intend  to  carry  the  ques- 


<-'!].    10.)  BILLS   OF  PEACE  18!) 

tion  as  to  such  legality  before  a  higher  tribunal  for  a  decision.  But 
neither  of  those  circumstances  can  give  jurisdiction  to  this  court  to 
interfere  before  the  right  of  the  complainants  is  established  by  such 
higher  tribunal.  If  they  are  successful  there,  it  is  not  probable  that 
the  interference  of  this  court  will  be  necessary."  In  the  very  similar 
case  of  Railroad  Co.  v.  Mayor,  54  N.  Y.  159,  an  injunction  was  sus- 
tained as  to  all  suits  but  one,  until  the  rights  of  the  parties  could  be 
determined  in  the  action  w'hich  was  permitted  to  be  brought.  In 
Tarbox  v.  Hartenstein,  4  Baxt.  78,  the  defendant  had  been  an  employe 
of  the  plaintiff,  under  a  yearly  contract,  his  wages  being  payable  weekly, 
and  had  been  discharged  before  the  contract  expired,  on  the  ground 
that  he  failed  to  perform  the  stipulations  on  his  part.  He  was  paid 
wages  accruing  thereafter  and  recovered  judgment,  which  was  paid, 
up  to  the  time  of  his  discharge.  Ue  brought  suit  for  his  first  week's 
wages  accruing  thereafter  and  recovered  judgment,  which  was  paid 
He  sued  again  for  the  next  week's  wages,  and  recovered  a  judgment, 
from  which  an  appeal  was  taken.  He  brought  also  a  third  suit,  and  an- 
nounced his  purpose  to  bring  a  suit  for  each  week's  wages  as  it  accured, 
as  long  as  by  the  terms  of  the  contract  it  was  to  have  continued  in  force. 
The  court  held  that  it  was  an  entire  contract  for  the  year,  though  the 
wages  were  payable  by  the  week,  and  that  the  judgment  in  the  first 
suit  was  conclusive  of  his  rights,  and  precluded  any  further  recovery, 
and  perpetually  enjoined  him  from  prosecuting  the  actions  already 
brought,  and  from  bringing  any  other.  It  is  to  be  remarked,  that 
although  the  judgment  in  the  second  action  (which  was  the  first  in 
which  res  adjudicata  could  have  been  pleaded)  had  gone  against  the 
complainants,  and  although  they  had  a  complete  remedy  at  law  against 
such  successive  actions,  yet  the  court  of  chancery  assumed  jurisdiction 
in  order  to  prevent  vexations  litigation,  and  restrained  the  defendant 
from  prosecuting  any  further  suits.  The  decree  of  the  chancellor  was 
affirmed  in  the  supreme  court. 

In  the  present  case  the  suits  already  brought  have  resulted  adversely 
to  appellant;  and  if  we  apply  the  rule  that  it  must  first  have  a  decision 
in  its  favor,  the  judgment  now  appealed  from  must  be  affirmed.  But 
we  doubt  if  this  rule  should  ever  be  applied  in  cases  f)f  this  particular 
character.  The  courts  which  have  adopted  it  have  as  we  think  followed 
the  analogy  of  the  original  bill  of  ])cace,  without  sufficient  reason. 
In  the  case  of  a  bill  of  j)eacc  the  coiul  oi  chancery  interferecl,  because 
there  had  been  a  trial  at  law  which  was  not  conclusive,  and  its  inter- 


190  BILLS  OF  PEACE.  (Part.  3 

position  was  necessary  in  order  to  prevent  vexatious  litigation.     That 
court  had  no  power  to  try  title  to  land,  and  hence  could  not  entertain 
a  bill  of  peace  until  the  title  had  been  decided  at  law  in  favor  of  the 
complainant.    The  object  of  the  bill  was  to  prevent  vexatious  litigation, 
but  a  judgment  at  law  establishing  the  title  of  the  complainant  was 
the  necessary  foundation  of  the  procedure.    But  the  case  is  different 
where  a  party  claiming  a  just  defense  to  a  multitude  of  demands  held 
by  one  person  against  him,  and  all  of  the  same  character,  and  involving 
precisely  the  same  questions,  seeks  relief  against  the  vexation,  expense, 
and  trouble  of  defending  as  many  separate  actions.     When  separate 
suits  are  brought  and  threatened,  why  await  the  determination  of  one? 
It  seems  to  us  that  the  unnecessary  expense  and  vexation  necessarily 
resulting  from  such  a  multiplicity  of  suits  should  be  deemed  a  sufficient 
ground  for  the  interposition  of  the  district  court  under  our  system,— 
that  being  a  court  of  blended  jurisdiction.    But  we  need  not  go  so  far. 
We  are  not  called  upon  to  deny  the  doctrine  applied  in  West  v.  Mayor, 
supra.    The  opinion  in  that  case  shows  that  from  the  judgment  of  the 
justice  of  the  peace  the  complainants  had  an  appeal  to  a  court  whose 
decision  would  establish  a  legal  precedent.     If  it  be  said  that  a  court 
of  equity  will  only  act  after  a  decision  favorable  to  the  complainant 
in  a  court  of  law  in  which  the  judges  are  required  to  be  lawyers,  we 
can  see  the  reason  of  it.    But  we  do  not  think  this  rule  should  be  applied 
to  judgments  of  the  county  and  justice  courts  under  our  system,  when 
the  amount  in  controversy  is  not  such  as  to  permit  appeals  to  "the 
appellate  court."     The  officers  who  preside  in  these  tribunals  are  not 
required  to  be  learned  in  the  law.    Their  judgments,  not  appealed  from, 
are  conclusive  between  the  parties   as  to  the   subject-matter   of   the 
particular  suit  in  which  they  are  rendered ;  but  they  cannot  be  said  to 
affect  in  any  manner  any  general  right.     Had  it  appeared  from  the 
plaintiff's  petition  that  one  of  the  suits  against  it  had  been  brought  in 
the  district  court,  and  had  there  been  decided  against  it,  or  that  from 
a  judgment  in  the  county  court  it  had  appealed  to  the  court  of  appeals, 
and  that  court  had  affirmed  the  judgment  upon  the  merits,  then  the 
presumption  would  have  been  great  that  it  had  no  just  defense  to  the 
other  actions.    Acting  upon  this  presumption,  a  court  of  equity  might 
well  decline  to  interfere.    But  no  such  presumption  arises  from  a  judg- 
ment of  the  justice  or  county  court  in  this  state,  when  by  reason  of 
the  amount  in  controversy  there  can  be  no  appeal.    Therefore,  when  a 


oil.   10.)  BILLS   OF  PEACE  1*)1 

case  for  the  interposition  of  a  court  of  equity,  in  order  to  prevent  a 
multiplicity  of  suits,  is  presented,  the  action  of  the  court  should  not 
be  affected  by  such  judgments,  whether  it  be  favorable  or  unfavorable 
to  the  complainants.  In  the  case  of  the  Water-Works  v.  Yeamans, 
supra,  the  English  court  of  chancery  awarded  an  injunction  against  a 
large  number  of  defendants,  who  each  held  a  separate  claim  against  the 
company,  growing  out  of  the  same  alleged  injury,  though  no  right 
had  been  established  b}-  an}-  suit  at  law ;  and  we  see  no  reason  why  the 
relief  shovild  have  been  refused,  if  all  the  claims  as  in  this  case  had 
become  the  property  of  a  single  holder.  The  rule  is,  that  if  in  the 
tribunal,  which  has  jurisdiction  of  the  demands,  there  can  be  a  con- 
solidation, then  it  is  the  duty  of  the  party  to  resort  to  this  remedy,  and 
equity  will  not  interfere.  In  such  a  case  there  is  an  adequate  remedy 
at  law.  But  in  this,  though  the  demands  separately  are  within  the 
jurisdiction  of  the  justice  court,  the  aggregate  amount  exceeds  that 
jurisdiction.  Hence  they  cannot  be  consolidated.  Besides,  in  order, 
it  would  seem,  to  prevent  even  a  partial  consolidation  and  to  increase 
the  expense,  the  defendant  had  determined  to  bring  a  separate  suit  to 
each  successive  term  of  the  court.  According  to  the  allegations  of  *he 
petition  (which  the  demurrer  admits  to  be  true)  it  is  a  clear  case  in 
which  the  appellee  is  about  to  avail  himself  of  his  right  to  bring  separate 
suits  in  the  justice  court,  in  order  to  vex  and  harass  the  appellant  by  a 
mvdtiplicity  of  actions ;  and  in  which  the  appellant  has  no  means  of 
protecting  itself  against  the  attempted  wrong  except  by  a  resort  to 
the  writ  of  injunction.  This  remedy  is  a  relief  to  appellant,  and  works 
no  hardship  to  appellee,  who  can  set  up  his  demands  in  the  action,  and 
thus  have  the  litigation  determined  in  one  proceeding.  Our  system 
of  procedure  is  essentially  equitable  in  its  nature,  and  was  designed  to 
prevent  more  than  one  suit  growing  out  of  the  same  subject-matter 
of  litigation ;  and  our  decisions  from  the  first  have  steadily  fostered 
this  policy.  Chevalier  v.  Rusk,  Dall.  Dig.  611;  Binge  v.  Smith,  Id. 
616;  Clegg  v.  Varnell,  18  Tex.  294. 

We  conclude,  therefore,  that  the  exceptions  to  so  nnich  of  the 
petition  as  sought  to  enjoin  the  collection  of  the  judgment  of  the 
county  court  should  have  been  sustained,  and  that  the  exceptions  should 
have  been  overruled  to  so  much  thereof  as  sought  to  enjoin  apix'llce 
from  bringing  separate  suits  upon  his  demands;  rind  that  the  court 
erred  in  sustaining  the  entire  excej)tions  and  in  (hss(jlving  in   whole 


192  BILLS  OF  PEACE.  (Part.  3 

the  injunction  and  dismissing  the  bill.     For  the  error  pointed  out,  the 
judgment  is  reversed,  and  the  cause  remanded. 


SKINKLE  V.  CITY  OF  COVINGTON. 

(Kentucky  Court  of  Appeals,  1885,  83  Ky.  420.) 

Pryor,  J.  The  city  council  of  Covington  having  as  a  legislative 
body  the  complete  control  of  the  streets,  lanes,  alleys,  wharves,  land- 
ings, etc.,  within  the  corporate  limits,  with  the  right  to  pass  such  or- 
dinances and  by-laws  as  may  be  necessary  for  the  better  government 
of  the  city  and  to  legislate  on  all  subjects  that  the  good  govern- 
ment of  the  city  may  require,  and  affix  penalties  for  the  violation  of 
its  ordinances  not  exceeding  fifty  dollars,  on  the  eighth  of  February, 
1883,  enacted  an  ordinance  declaring  "it  unlawful  for  any  person,  un- 
less by  ordinance,  resolution,  or  written  authority  of  the  council,  or 
under  the  laws  of  Kentucky,  to  hold  the  exclusive  possession  of  any 
of  the  streets,  lanes,  alleys,  commons,  spaces,  squares,  wharves,  or 
landings  belonging  to  the  city  of  Covington,  or  any  part  thereof." 

The  penalty  for  a  violation  of  the  ordinance  is  the  imposition  of  a 
fine  in  the  mayor's  court  of  fifteen  dollars  for  each  twenty-four  hours 
the  person  charged  may  be  found  guilty  of  a  violation  of  the  ordinance, 
and  the  costs  of  proceeding,  etc. 

In  a  few  days  after  the  passage  of  this  ordinance  a  warrant  was 
issued  in  the  name  of  the  city  against  the  appellant,  charging  him  with 
violating  its  provisions.  The  case  was  heard  in  the  mayor's  court,  and 
a  fine  imposed  on  the  appellant  of  fifteen  dollars,  from  which  an  appeal 
was  taken  to  the  quarterly  court  and  dismissed  for  want  of  jurisdiction. 
Another  warrant  was  then  issued  for  a  further  violation  of  the  or- 
dinance by  the  appellant,  and  soon  after  as  many  as  twelve  or  fifteen 
complainants  entered  against  him  by  the  city,  involving  his  disregard 
of  the  ordinance,  and  asking  for  a  summons  against  him.     .     .     . 

The  facts  stated  entitled  the  appellant  to  an  injunction  restraining 
the  city  from  proceeding  under  its  warrants  until  the  controversy  as 
to  the  use  and  possession  of  the  property  in  question  could  be  deter- 
mined. Here  was  a  controversy  between  the  city  and  the  appellant  as 
to  the  use  of  the  river  bank  as  a  harbor  for  his  coal-boats  in  common 


Ch.    10.)  BILLS    OF  PEACE  193 

with  others.  There  was  no  wharf  or  city  landing  at  this  point — no 
street  or  any  way  belonging  to  the  city  obstructed,  but  the  use  in  com- 
mon with  those  who  had  coal  and  flat-boats  on  the  river  by  using  the 
shore  as  a  place  of  fastening  their  boats,  and  of  loading  and  unloading 
them  when  they  saw  proper. 

No  right  of  the  city  had  been  invaded  by  the  appellant ;  but,  on  the 
contrary,  the  latter  had  used  this  part  of  the  river  bank  as  a  matter  of 
right.  The  judgment  against  the  city  in  January,  1871,  gave  to  the 
heirs  of  McNickle  the  possession  and  use  of  the  premises  for  twenty- 
five  years,  and  the  appellant  entered  under  the  claim  of  McNickle's 
heirs  in  1874. 

The  facts  alleged  in  the  petition  are  all  admitted  by  the  demurrer, 
and  present  a  case  where  the  city  must  adopt  a  civil  remedy  for  relief 
if  the  facts  alleged  are  not  true,  or  litigate  the  right  of  the  appellant  to 
the  use  of  the  property  in  the  present  action. 

Fines  and  penalties  can  not  be  imposed  against  one  who  is  right- 
fully in  possession  under  the  ordinance  in  question.  It  is  intended  to 
punish  the  trespasser,  or  those  who,  without  right,  are  appropriating 
the  property  of  the  city  to  their  own  use,  but  can  not  be  enforced 
against  one  who  has  the  right  to  the  use.  The  decision  upon  the  war- 
rant in  the  mayor's  court  does  not  determine  this  right ;  but  if  the  facts 
alleged  are  true,  the  appellant  is  being  punished  by  fine  for  exercising 
a  right  of  which  he  can  not  be  deprived  without  due  process  of  law, 
and  which  he  was  exercising  at  the  time  the  ordinance  was  passed. 
His  ordinary  remedy  against  the  city  for  the  wrong  complained  of 
would  not  stay  proceedings  upon  the  multiplied  warrants  against  him, 
and  in  such  a  state  of  case  we  see  no  reason  why  a  court  of  equity 
should  not  entertain  jurisdiction,  and  stay  all  proceedings  on  the  war- 
rants until  the  matters  alleged  in  the  petition  are  heard  and  determined. 
The  aid  of  a  court  of  equity  cannot  be  invoked  so  as  to  interfere 
with  proceedings  of  subordinate  tribunals,  unless  to  prevent  irreparable 
injury  or  a  multiplicity  of  suits.  (Ewing  v.  City  of  St.  Louis.  5  Wal- 
lace, 413;  The  Mayor  of  Brooklyn  v.  Meserole,  26  Wend..  132.) 

The  ordinance  passed  by  the  city  is  not  void,  but  in  accordance  wit-li 
law,  and  without  any  discrimination  in  its  provisions  as  between  llie 
citizens  of  Covington,  and  the  real  ground  for  going  into  a  courl  of 
equity  is  the  illegal  use  made  of  this  ordinance  against  a  patiy  who 
is  without  remedy  at  law,  and  who  nmst  be  compelled  Ic;  surrender 
3  E(i— 13 


j94  BILLS  OF  PEACE.  (Part.  3 

his  right  to  the  use,  title  and  possession  of  property  in  order  to  avoid 
the  imposition  of  penalties  upon  him  that,  when  enforced,  must  work 
irreparable  injury. 

It  can  not  well  be  said  that  the  city  or  its  authorized  agents  are 
trespassers  when  the  proceeding  against  the  appellant  is  by  warrant 
for  a  violation  of  the  ordinance,  and  the  judgment  rendered  by  a  court 
having  jurisdiction  over  the  subject-matter  and  the  parties. 

In  the  case  of  the  Trustees  of  Louisville  v.  Gray,  reported  in  1 
Littell,  147,  Gray  attempted  to  build  a  warehouse  upon  ground  to 
which  he  claimed  title,  and  the  city  authorities,  claiming  that  the  wall 
of  the  building  was  on  a  street  of  the  city,  proceeded  to  enforce  the 
penalty  of  four  dollars  and  costs  against  Gray  for  the  obstruction. 
Gray  obtained  an  injunction,  that  was  perpetuated,  upon  the  ground 
that  he  and  not  the  city  was  vested  with  the  title,  and  this  court  affirmed 
the  judgment,  holding  that  a  court  of  equity  could  entertain  the  juris- 
diction for  the  purpose  of  quieting  the  title. 

In  this  case  no  action  at  law  can  be  maintained  for  an  entry  on 
appellant's  possession,  for  none  has  been  made.  He  has  no  appeal  from 
the  judgment  of  the  municipal  court  enforcing  the  ordinance,  and  is 
met  with  a  warrant,  in  the  name  of  the  city,  under  which  he  is  fined 
fifteen  dollars  for  each  twenty-four  hours  that  he  uses  the  river  bank, 
or  permits  his  boats  to  remain  there. 

By  this  mode  of  proceeding  the  civil  remedy  by  the  city  is  ignored, 
and  the  appellant  compelled  to  abandon  the  possession  in  order  to 
avoid  the  penalties.  The  injury  is  irreparable,  and  a  court  of  equity 
should  not  hesitate  to  grant  the  relief. 

The  judgment  is  therefore  reversed,  and  the  cause  remanded,  with 
directions  to  overrule  the  demurrer  and  award  the  injunction,  etc. 


Cll.    11.)        ■  MISCELLANEOUS.  1^5 


CHAPTER  XI.  MISCELLANEOUS. 


LENT  V.  HOWARD. 

(Court  of  Appeals  of  New  York,  1882,  89  N.  Y.  169.) 

Andrews,  Cii.  J.  We  are  of  opinion,  that  the  executors  were 
properly  held  to  account  for  the  rents  and  profits  of  the  real  estate 
received  by  them,  and  for  the  proceeds  of  sales  of  real  estate  made 
under  the  power  conferred  by  the  will.     .     .     . 

We  think  there  was  by  the  ninth  section  ^of  the  will  in  question,  a 
conversion  of  the  testator's  real  estate  (except  the  homestead  farm,) 
into  personalty  as  of  the  time  of  his  death,  and  a  gift  of  the  converted 
fund,  together  with  the  intermediate  income,  to  the  testator's  wife  and 
daughter,  with  cross  remainders.  It  is  true  that  the  power  of  sale  is 
not  in  terms  imperative.  The  words  are  those  conferring  authority, 
and  not  words  of  command  or  absolute  direction.  But  it  is  clear  that 
a  conversion  was  necessary  to  accomplish  the  purpose  and  intention  of 
the  testator  in  the  disposition  of  the  proceeds,  and  when  the  general 
scheme  of  the  will  requires  a  conversion,  the  power  of  sale  operates 
as  a  conversion,  although  not  in  terms  imperative.  (Dodge  v.  Pond, 
23  N.  Y.  69.)  The  conversion  also  will  be  deemed  to  be  immediate, 
although  the  donee  of  the  power  is  vested,  for  the  benefit  of  the  estate, 
with  a  discretion  as  to  the  time  of  sale.  (Stagg  v.  Jackson,  supra; 
Robinson  v.  Robinson,  19  Reav.  494.)  We  are  therefore  of  opinion, 
that  the  rents  and  profits  of  the  real  estate  received  by  the  executors, 
and  the  proceeds  of  sales,  were  properly  brought  into  the  account- 
ing.    .     .     . 


BEELER  V.  BARRINGER. 

(Supreme  Court  of  Illinois,  1911,  2r>2  111.  288,  9(i  N.  E.  874.) 

Farmer,  J.  This  is  a  writ  of  error  .sued  out  to  review  a  decree  of 
the  circuit  court  of  Montgomery  county  for  ihe  re-conversion  of  per- 
sonal property  into  real  estate.     .     .     . 


196        ,  MISCELLANEOUS.  (Part.  3 

There  is  no  controversy  upon  the  proposition  that  under  the  will 
the  defendants  in  error  took  no  title  to  the  land ;  that  where  land  is 
devised  and  by  the  terms  of  the  will  is  directed  to  be  converted  into 
money  and  the  money  distributed  to  the  devisees  and  legatees,  it  is  a 
devise  of  money  and  not  of  land.  Neither  is  there  any  controversy 
that  under  such  a  devise,  if  the  devisees  are  under  no  disability  and 
all  agree  to  do  so,  they  may  elect  to  take  the  land  instead  of  the  money. 
Plaintiff  in  error  also  concedes  that  a  "court  of  equity  may,  if  it 
appears  to  be  to  the  advantage  of  an  infant,  direct  a  re-conversion  in 
his  behalf,  if  at  the  time  of  such  re-conversion  the  infant  is  presently  en- 
titled to  the  fund."  It  is  contended,  however,  that  the  right  to  elect  a 
re-conversion  only  exists  where  the  beneficiary,  whether  adult  or 
minor,  is  entitled  to  the  present  enjoyment  of  the  fund  or  property. 

By  the  will  of  their  father  defendants  in  error  would  become  en- 
titled to  the  possession  and  use  of  the  gift  upon  their  respectively  at- 
taining the  age  of  twenty-one  years.  But  one  of  them  had  arrived  at 
that  age  when  the  bill  in  this  case  was  filed  and  the  decree  entered 
thereon,  and  the  youngest  was  but  ten  years  old.  We  do  not  think  the 
right  of  a  devisee  to  elect  a  conversion  or  re-conversion  of  money  into 
land  or  land  into  money  is  dependent  upon  his  right  to  the  present  en- 
joyment of  the  gift  at  the  time  the  election  is  made.     ... 

We  are  of  opinion  there  was  no  error  in  decreeing  a  re-conversion 
and  enjoining  the  sale  of  the  land,  but  that  part  of  the  decree  direct- 
ing the  trustee  and  executor  to  release  and  turn  the  land  over  to  the 
minors  at  once  was  erroneous.  The  duty  was  imposed  by  the  will  upon 
the  trustee  of  managing  and  controlling  the  property  of  the  mmors 
until  they  respectively,  arrived  at  the  age  of  twenty-one  years.  Until 
the  land  was  sold  he  was  to  manage  and  control  the  land,  and  when 
it  was  sold  the  proceeds  were  to  be  invested  by  him  in  safe  securities 
at  the  best  rate  of  interest  obtainable,  and  kept  so  invested  by  him 
until  the  time  fixed  for  distribution  arrived.  Re-conversion  defeats 
the  distribution  of  the  testator's  property  in  money,  but  the  right  of 
re-conversion  does  not  carry  with  it  the  right  to  defeat  the  will  of 
the  testator  that  the  possession  and  enjoyment  of  the  property  should 
be  postponed  until  the  beneficiaries,  respectively,  became  twenty-one 
years  old.  Under  the  evidence  the  chancellor  was  justified  in  con- 
cluding that  it  was  for  the  best  interests  of  the  minor  defendants  in 
error  that  they  take  the   land   instead  of   the   proceeds   of    its   sale. 


Cll.    11.)  MISCELLANEOUS.  1!)( 

but  the  election  to  so  do  did  not  authorize  a  disregard  of  the  will 
fixing  the  time  at  which  the  beneficiaries  should  come  into  its  enjoy- 
ment. The  control  and  management  of  the  property  of  the  minor 
defendants  in  error  should  be  left  in  the  trustee  until  the  time  fixed 
by  the  will  for  distribution.     .     . 


CURTETS  V.  WORMALD. 

(In  Chancery,  1878,  10  Ch.  D.  172.) 

Je;sse;l,  M.  R.  The  point  which  I  have  to  consider  and  to  decide 
is  this  :  A  testator  directed  his  trustees — for  although  the  same  persons 
may  have  been  appointed  executors  they  are  for  this  purpose  trustees, 
and  trustees  only — to  lay  out  his  residuary  personal  estate  in  the 
purchase  of  real  estate,  freeholds  and  copyholds,  to  be  settled  to 
certain  uses,  comprising  a  long  series  of  limitations.  The  residue  was 
ascertained,  that  is,  the  testator's  debts  and  legacies  and  funeral  and 
testamentary  expenses  were  all  paid,  and  then  the  residue  was  at 
different  times  laid  out  by  the  trustees,  pursuant  to  the  will,  in  the 
purchase  of  freehold  and  copyhold  estates,  which  were  conveyed 
so  as  to  vest  the  legal  estate  in  the  trustees. 

That  being  so,  the  limitations  took  effect  to  a  certain  extent,  and 
then,  by  reason  of  failure  of  issue  of  the  tenants  for  life,  the  ultimate 
limitations  failed,  and  there  became  a  trust  for  somebody.  Now,  for 
whom  ? 

According  to  the  doctrine  of  the  Court  of  Equity,  settled,  if  I  may 
say  so,  by 'the  well-known  case  of  Ackroyd  v.  Smithson  (1  P.ro.  C.  C. 
503,) — for  it  has  always  been  the  law  of  this  Court  since — this  kind 
of  conversion  is  a  conversion  for  the  purposes  of  the  will,  and  does 
not  affect  the  rights  of  the  persons  who  take  by  law  indei)endeiit 
of  the  will.  If.  therefore,  there  is  a  trust  to  sell  real  estate  for  the 
purposes  of  the  will,  and  the  trust  takes  effect,  and  there  is  an  ultimate 
beneficial  interest  undisposed  of.  that  undisposed  of  interest  goes  to  the 
heir.  If,  on  the  other  hand,  it  is  a  conversion  of  jx-rsonal  estate  into 
real  estate,  and  there  is  an  nltiniatr  limitation  which  fails  ol  taknig 
effect,  the  interest  which  fails  results  lor  the  henetil  ol  the  ])ersons 
entitled  to  the  personal  estate,  that  is.  the  ju-rsons  who  take  under  the 


198  MISCELLANEOUS.  (Part.  3 


> 


Statutes  of  Distribution  as  next  of  kin.     Their  right  to  the  residue 
of  the  personal  estate  is  a  statutory  right  independent  of  the  will. 

The  result  is  that  in  the  case  I  put  there  is  a  trust  for  the  next 
of  kin.  How  any  one  could  imagine  it  was  a  trust  for  anybody  else 
it  is  difficult  to  understand;  and  had  I  not  been  referred  to  the  judg- 
ment of  a  very  eminent  Judge  on  this  subject  I  should  have  said  it 
was  impossible  to  understand  it. 

There  certainly  is  authority  for  saying— a  single  authority,  and  an 
authority  standing  alone — that  the  ultimate  trust  is  not  for  the  next 
of  kin,  but  for  the  executors.  Why?  The  executors  have  ceased  to 
have  anything  whatever  to  do  with  the  matter.  They  have  paid  over 
the  legacy  to  the  legatee,  who  happens  to  be  a  legatee-trustee,  and 
who  holds  it  by  law,  under  the  Statutes  of  Distribution,  as  trustee  for 
the  next  of  kin,  and  no  one  else.  By  what  process  of  reasoning  any 
other  result  can  be  arrived  at  I  have  been  unable  to  discover.  The 
decision  to  wdiich  I  have  referred  is  one  which,  to  my  mind,  is  utterly 
opposed  to  the  whole  law  upon  the  subject. 

Then  the  next  question  which  arises  is,  how  does  the  heir-at-law 
in  the  first  case,  or  the  next  of  kin  in  the  second,  take  the  undisposed- 
of  interest?  The  answer  is,  he  takes  it  as  he  finds  it.  If  the  heir-at- 
law  becomes  entitled  to  it  in  the  shape  of  personal  estate,  and  dies, 
there  is  no  equitable  reconversion  as  betv/een  his  real  and  personal 
representative,  and  consequently  his  executor  takes  it  as  part  of  his 
personal  estate. 

On  the  other  hand,  if  the  next  of  kin,  having  become  entitled  to  a 
freehold  estate,  dies,  there  is  no  equity  to  change  the  freehold  estate 
into  anything  else  on  his  death ;  it  will  go  to  the  devisee  of  real  estate 
or  to  his  heir-at-law  if  he  has  not  devised  it,  and  will  pass  as  real 
estate.      ... 


WETHERILIv  V.  HOUGH. 

(New  Jersey  Court  of  Chancery,  1894,  52  N.  J.  Eq.  683,  29  Atl.  592.) 

Bird,  V.  C.  William  Wetherill  was  the  owner  of  certain  lands 
and  died  seized  thereof,  leaving  him  surviving  several  children,  one  of 
whom  was  named  Sarah  M.,  who  married  John  S.  Hough.     Sarah 


Cb.    11.)  MISCELL.\NEOVS.  19i) 

M.  died  January  10th,  1875,  leaving  her  siuviving  the  said  John  S. 
Hough  and  Frances  Eleanor  A.  E.  Hough,  their  only  child.  The 
title  of  the  said  lands  which  descended  to  Sarali  Hough  at  her 
death  passed  to  her  daughter,  the  said  Frances  Eleanor  A.  E.,  subject 
to  the  estate  by  the  curtesy  of  her  father.  The  complainants  were 
the  brothers  and  sisters  of  the  said  Sarah,  and  consequently  the  uncles 
and  aunts  of  the  said  Frances  Eleanor,  and  they  claim  that  the  fee  of 
the  said  lands  would  have  descended  to  them  (had  it  not  been 
disposed  of  as  hereinafter  will  appear)  as  the  heirs-at-law  of  the 
said  Frances  Eleanor. 

During  the  lifetime  of  PVances,  by  an  order  of  this  court,  a  por- 
tion of  the  said  lands,  of  the  value  of  $200,  was  conveyed  to  the  gas 
company  of  the  city  of  Atlantic  City,  and  $80  paid  for  a  right  of  way 
over  a  lot  of  land  in  Atlantic  City.  And  $1,320.64  was  paid  for  land 
taken  by  the  Chelsea  Branch  Railroad  Company,  under  the  exercise 
of  the  right  of  eminent  domain.     .     .     . 

The  court  is  asked  to  declare  that  these  moneys  are  to  be  treated 
as  real  estate,  and  consequently  pass,  by  the  statute  of  descent,  to  the 
complainants,  who  are  the  uncles  and  aunts  of  the  said  Frances 
Eleanor,  subject  only  to  the  tenancy  by  the  curtesy  of  the  said  John  S. 
as  the  husband  of  the  said  Sarah. 

As  to  the  $200.  it  is  insisted  upon  the  part  of  the  defendant,  John 
S    Houeh.  that  since  the  lands  of  the  infant  of  that  value  were  con- 
verted  into  money  by  the  order  and  direction  of  the  court,  it  nuist  be 
presumed  to  have  been  in  the  interest,  or  for  the  benefit  of  the  in- 
fant, and  that  it  was  consequently  such  a  conversion  as  would  have 
resulted  if  Frances  Eleanor  had  been  of  age  and  performed  the  same 
act  in  person.    It  is  claimed  that  this  was  a  voluntary,  as  distinguished 
from   a   compulsory,   conversion,    such    as   characterizes   the    sale    of 
lands  under  the  statute  by  executors  and  administrators  for  the  jiay- 
ment  of  debts  of  decedents,  when  the  question  arises  as  to  whether 
any  surplus  remaining  must  be  treated  as  real  estate  or  as  ]iersonality. 
The  $200  must  be  treated  as  real  estate.     The  case   most   nearly 
like  this  which  has  been  considered  by  our  own  courts,   is  that   of 
Snowhill  V.  Snowhill,  2  Cr.  Ch.  20,  which  was  before  the  chancellor 
on  demurrer,  and  before  the  court  of  errors  and  appeals,  as  api^ears 
in  the  opinion  of  Chancellor   Pennington,  in    1   Cr.  Ch.  M).     The  <K- 
cision  of  the  court  of  errors  and  appeals  in  thai  case  has  n..i  luvn  re- 
ported, but  it  appears  fr<»ni  ihr  case  of  Oberle  v.  Lerch.  .\C.  !•,.  Cr. 


200  MISCELLANEOUS.  (Part.  3 

350,  that  the  correctness  of  the  decision  was  very  seriously  questioned 
by  the  counsel  and  an  effort  made  to  have  it  overruled,  but  after  full 
consideration  and  a  review  of  a  number  of  authorities,  the  chancellor, 
without  qualification,  approved  the  decision  of  the  court  of  errors 
and  appeals,  in  the  case  of  Snowhill  v.  Snowhill.  The  case  of  Oberle 
V.  Lerch  was  taken  up  on  appeal  (3  C.  E.  Gr.  575)  and  the  decree  of 
the  chancellor  affirmed.  Now,  in  the  Snowhill  Case,  the  legislature 
by  special  enactment  authorized  the  guardian  of  an  infant  to  sell 
certain  real  estate  belonging  to  the  infant.  Aiter  such  sale  the  in- 
fant died,  and  the  question  presented  for  the  determination  of  the 
court  was  whether  the  proceeds  of  such  sale  should  be  treated  as 
real  or  personal  estate.  The  chancellor,  on  demurrer,  decided  that 
it  should  be  treated  as  personalty  which  passed  to  the  representative 
of  the  infant,  while  the  court  of  errors  and  appeals  decided  that  it 
should  be  treated  as  real  estate  and  that  it  descended  to  the  heir-at- 
law  of  the  infant. 

The  rule  to  be  extracted  from  this  case  is  that  where  there  is  a 
compulsory  conversion  of  the  real  estate  of  an  infant,  the  proceeds 
durino-  the  minority  of  the  owner  retain  the  character  of  real  estate 
for  the  purposes  of  devolution  and  transmission. 

The  cases  show  that  where  the  conversion  is  compulsory,  i.  e., 
against  the  will  or  without  the  consent  of  the  owner,  the  fund  will  be 
treated  as  real  estate  until  the  owner,  being  sui  juris  or  of  dis- 
posable capacity,  manifests  a  willingness  to  accept  it  as  personal. 

The  $80  must  be  controlled  by  a  different  rule.  The  parties  claim- 
ing it  were,  at  the  time  of  the  sale,  sui  juris,  and  undertook  to  convey 
to  and  secure  the  entire  fee  (including  that  of  the  infant)  in  the 
grantee.  The  $80,  which  represented  the  supposed  interest  of  the  in- 
fant was  paid  to  her  guardian.  The  complainants  have  not  the  shadow 
of  a  right  to  claim  the  proceeds  of  that  transaction,  which  represented 
the  interest  of  the  infant  as  real  estate.  I  will  advise  a  decree  in  ac- 
cordance with  these  views. 


MAKEPEACE  v.  ROGERS. 

(In  Chancery,  1865,  4  DeG.,  J.  &  S.,  649.) 

The  bill  in  its  2d  paragraph  alleged,  that  in   1859  the  respondent 
had  appointed   the   appellant   to   be   the   agent   and   manager   of   the 


Ch.    11.)  MISCELLANEOUS.  201 

respondent's  real  estate  at  Bracknell,  in  Berkshire,  and  at  Bromley, 
in  Kent,  and  of  certain  houses  in  London  belonging  to  the  respondent, 
with  authority  to  receive  the  respondent's  rents  of  the  said  estate 
and  houses ;  and  that  the  respondent  had  given  the  appellant  a  power 
of  attorney  to  receive  the  dividends  and  interest  of  certain  bank- 
stock  and  other  stocks,  funds,  shares,  and  securities  belonging  to  the 
respondent ;  that  the  appellant  had  acted  as  such  agent  and  manager 
of  the  respondent's  aforesaid  estates  and  houses,  and  from  time  to 
time  received  the  rents  thereof,  and  from  time  to  time  received  the 
dividends  and  interest  of  certain  bank-stock  and  other  stocks,  funds, 
shares,  and  securities,  or  of  such  of  the  said  estate,  houses,  and  other 
property  aforesaid  as  from  time  to  time  remained  unsold,  down  to 
the  determination  of  the  appellant's  employment  by  the  respondent  at 
the  end  of  1863. 

The  bill  then  charging  in  effect  that  the  appellant  had  had  almost 
uncontrolled  authority  in  the  management  of  the  respondent's  estates, 
houses,  and  other  property  aforesaid,  and  had  by  his  directions  sold 
certain  timber  on  the  estates  and  also  divers  parts  of  the  estates, 
houses,  and  other  property  themselves,  and  received  the  proceeds  of 
sale,  but  had  rendered  none  but  meagre  and  unsatisfactory  accounts 
of  his  receipts  generally,  and  refused  or  omitted  to  give  any  better 
accounts  or  any  vouchers  for  his  expenditure,  and  alleging  (in  its  16th 
paragraph)  that  the  appellant  had  in  his  possession  or  custody  or 
under  his  control  divers  deeds,  probates  of  wills,  books,  maps,  plans, 
and  other  documents  and  muniments  of  title  belonging  to  the  respond- 
ent which  he  ought  to  deliver  up  to  the  respondent,  prayed  (1)  an 
account  of  the  appellant's  receipts  for  or  on  account  or  on  behalf  of 
the  respondent,  or  which  might  have  been  received  by  the  appellant  but 
for  his  willful  default  or  neglect;  (2)  an  account  of  the  appellant's 
payments  to  the  respondent  or  to  his  use  or  on  his  behalf ;  ( ,^)  jiavnu-nt 
of  the  balance  to  be  found  due;  (4)  delivery  by  the  ai)i)i'lhnit  to  ilie 
respondent  of  all  deeds,  probates  of  wills,  books,  maps,  plans,  nmni- 
ments  of  titles,  paper,  and  documents  belonging  to  the  respondent 
or  relating  lo  his  estate;  (5)  payment  by  the  appellant  of  the  costs  of 
the  suit;  and  (6)  general  relief.     .     .     . 

The  IvOrd  Justice  K.mcii'i"  HkitcI'  said  that  this  was  onr  of  ihe 
clearest  cases  that  had  ever  conic  mulcr  liis  I,oi"(lship's  iiotii-c.  .-md 
that  he  was  sur[)riscd  at  the  dcniuncT.  and  surprised  ;it  the  ,i])pi'al. 
The  bill  was  fded  by  a  land-owner  against  a  person  wlioin  lie  h.id   for 


202  MISCELLANEOUS.  (Part.  3 

some  years  employed  as  the  agent  and  manager  of  his  estates,  and 
the  allegations  of  its  2d  paragraph  were  these:    (His  Lordship  read 
the  passage   in   question  and   proceeded.)      Had   there   heen   nothing 
else  in  the  case  than  this  the  plaintiff  would  have  been  entitled  to  a 
decree.     His  Lordship  did  not  think  that  the  Lord  Justice,  when  as 
Vice-Chancellor  he  had  disposed  of  PhilHps  v.  PhilHps,  (9  Hare,  471), 
had  intended  to  say  that  a  bill  in  equity  for  an  account  would  not  lie 
unless  there  had  been   receipts  and  payments  on   both   sides.      (See 
Porter  v.  Spencer.  2  John.  Ch.  171  ;  1  Story  Eq.  Jur.  sec.  458;  Adams 
Eq.  5th  Am.  ed.,  222,  note  1.)     The  existence  of  a  fiduciary  relation 
between  the  parties,  as,  for  example  (as  was  the  case  here),  that  of 
principal  and  agent,  was  sufficient  to  confer  jurisdiction  on  this  Court, 
and  allegations  of   fraud  or  special  circumstances  were  unnecessary. 
No  doubt  if  there  had  been  between  the  parties  a  stated  and  settled 
account,  or  an  executed  release,  it  might  be  necessary  for  the  plain- 
tiff to  show  a  special  case  to  induce  this  Court  to  grant  the  relief 
sought.     But  no  such  case  arose  here.     Beyond  which,  the  claim  set 
up  by  the  present  plaintiff  against  the  defendant  his  steward  in  the 
16th  paragraph  of  the  bill,  and  in  respect  of  which  relief  was  sought 
by  the  4th  paragraph  of  the  prayer,  extending,  as  that  claim  did,  not 
to  discovery  only,  but  to  delivery  up  to  the  plaintiff  of  the  muniments 
in  question,  was  alone  sufficient  to  entitle  him  to  relief  in  this  Court. 
The  demurrer  and  the  appeal  were  alike  to  be  reprobated. 

The  Lord  Justice  Turner  said  that  this  was  clearly  not  a  case  in 
which  their  Lordships  could,  in  justice  to  the  Vice-Chancellor,  to  them- 
selves, or  to  the  principles  of  the  Court,  call  upon  the  counsel  for  the 
plaintiff.  The  claim  and  prayer  in  the  bill  as  to  the  documents  were 
alone  sufficient  to  support  it,  any  provisions  of  the  Common  Law 
Procedure  Act,  1854,  or  legal  rights  enforceably  by  action  notwith- 
standing. But  it  was  not  necessary  to  decide  the  case  upon  these 
grounds,  for  upon  the  demand  for  an  account  it  was  equally  clear. 
Although  it  might  be  that  in  a  simple  case  a  more  convenient  course 
would  be  to  apply  for  relief  to  a  Court  of  Common  Law,  still  as 
between  principal  and  agent,  there  existed  that  fiduciary  relation 
which  gave  jurisdiction  to  this  Court  to  interfere  on  behalf  of  the 
principal  suing  his  agent  as  such;  and  the  existence  of  fraud  was 
not,  although  the  contrary  had  been  contended  at  the  bar,  a  necessary 
element  to  give  jurisdiction  to  this  Court  to  interfere  in  such  a  case. 
Mackenzie  v.  Johnston,  4  Madd.  2>7?>,  was  in  point  to  the  contrary. 


Cll.    11.)  MISCELI^\XEOUS,  20w 

I 

Phillips  V.  Phillips,  9  Hare,  474,  in  which  his  Lordship  had  commented 
on  that  case,  went  upon  the  footing  of  the  account  there  in  question 
being  a  current  account  between  the  parties ;  and  the  bill  made  no 
case  of  general  agency,  alleging  only  an  isolated  agency  transaction 
connected  with  the  sale  by  the  defendant  of  some  railway  shares  be- 
longing to  the  plaintiff.  That  case  had  no  reference  to  a  case  of 
general  account  between  pi-incipal  and  agent ;  and  if  his  Lordship's 
language  in  giving  judgment  in  that  case  had  been  in  fact  such  as  to 
give  rise  to  misapprehension,  such  misapprehension  ought  to  have 
been  dispelled  by  what  he  had  said  in  the  subsequent  case  of  Padwick 
V.  Stanley,  9  Hare,  628,  when  adverting  to  the  want  of  correlation  be- 
tween the  rights  of  a  principal  and  an  agent  to  sue  in  this  Coin-t.  In 
the  present  case  the  Vice-Chancellor's  conclusion  was  perfectly  cor- 
rect, and  the  appeal  must  be  dismissed,  with  costs. 


FLUKER  V.  TAYLOR. 

(In  Chancery,  18,55,  3  Drewry  183.) 

The  VicE-ChancEllor.  .  .  .It  is  difficult  to  lay  down  any  fixed 
rule  which  goes  to  mark  out  the  line  between  those  cases  wdien 
an  account  must  be  taken  in  equity,  and  when  it  need  not.  An  attempt 
has  been  made  to  lay  down  such  a  rule,  by  saying  the  accounts  must 
be  mutual,  that  there  must  be  receipts  and  payments  on  both  sides. 
Now,  even  if  that  were  the  rule,  this  case  does  not  contain  any  allega- 
tion of  any  receipts  by  the  Plaintiff.  But  it  really  appears  to  me  that 
it  would  be  dangerous  to  lay  down  the  rule  in  any  such  terms.  For, 
take  the  common  case  of  any  gentleman  of  fortune  keeping  a  mere 
money  account,  not  a  business  account,  with  his  banker;  he  pays 
money  to  the  banker,  and  the  banker  pays  his  cheques;  that  is  mutual 
receipt  and  payment;  the  l)anker  receives  money  from  the  customer, 
and  pays  cheques  to  the  customer;  and  tin-  customer  pays  mmu'v  into 
the  banker's,  and  draws  money  out.  If  the  rule  were  as  stated,  such 
a  case  would  fall  within  it,  wliile  it  is  clear  in  such  a  case  no  bill  would 
He.  It  is  therefore  dangerous  to  say  the  e(|uity  depends  on  nnitual 
receipts  and  payments;  the  equity  mu^l  depend,  in  each  cise,  on  the 
nature  of  the  account;  it  depends  on  this,  whether  the  accoinit  is  in  Us 


204j  miscellaneous.  (Part,  o 

own  nature,  not  merely  from  number  of  items,  but  from  its  nature, 
so  complicated  that  this  Court  will  say,  such  an  account  cannot  be 
taken  in  a  Court  of  Law.  That  is  not  this  case;  the  main  if  not  the 
only  question,  is  the  claim  of  £1,175  for  remuneration,  and  that  is 
not  a  question  of  account  so  complicated  that  it  can  be  said  that  a 
Court  of  Law  cannot  deal  with  it.  The  motion  must  therefore  be 
refused  with  costs. 


MUSGRAVE  V.  DICKSON. 

(Supreme  Court  of  Pennsylvania,  1896,  172  Pa.  629,  33  All.  705.) 

Fe:ll,  J.  This  proceeding  is  founded  upon  a  petition  by  Samuel 
Musgrave,  one  of  the  sureties  on  a  replevin  bond,  for  subrogation 
to  the  rights  of  the  plaintitT  in  the  judgment.  An  answer  was  filed 
by  the  appellant,  the  plaintiiT,  in  which  he  averred  that  the  judgment 
had  not  been  fully  paid,  and  in  which  he  stated  other  supposed  equi- 
table grounds  in  denial  of  the  right  claimed.  A  separate  answer  was 
filed  by  the  defendants,  in  which  they  alleged  th^at  they  had  trans- 
ferred their  property  and  business  to  the  co-surety.  J-  C.  Dicken,  to 
secure  him  and  Samuel  Musgrave  from  any  loss  they  might  sustain 
by  reason  of  the  bond,  and  that  from  the  management  of  their  business 
an  amount  had  been  realized  by  Dicken  more  than  sufficient  to  cover 
the  payment  made  by  Musgrave.  It  was  agreed  by  both  sureties  that 
the  amount  due  the  defendants  from  the  management  of  the  business 
should  be  credited  by  Musgrave  on  account  of  the  money  which  he 

had  paid.     .     .     . 

Subrogation  rests  upon  purely  equitable  grounds,  and  it  will  not 
be  enforced  against  superior  equities.  Unless  the  surety  pays  the  debt 
in  full  he  is  not  entitled  to  subrogation,  and  until  this  is  done  the 
creditor  will  be  left  in  full  possession  and  control  of  the  debt  and  the 
remedies  for  its  enforcement.  .  .  .  The  settlement  of  the  account 
between  the  sureties  and  the  defendant  fixed  the  amount  of  the  liability 
of  the  latter  and  the  extent  of  the  right  to  indemnity,  but  it  did  not 
aflfect  the  right  of  surogation,  which  will  never  be  allowed  to  the  prej- 
udice and  injury  of  the  creditor.     .     .     . 


Cll.    11.)  MISCELL-^NEOUS.  205 


PEIRCE  V.  GARRETT. 

(Appellate  Courts  of  Illinois,  1896,  (55  111.  App.  682.) 

HarkER^  J.  This  is  an  appeal  from  an  order  of  the  Circuit  Court 
sustaining  a  demurrer  to  a  bill  in  equity  presented  by  appellants  and 
dismissing  it  for  want  of  equity  at  their  costs. 

The  bill  shows  that  on  the  20th  of  July.  1893,  John  M.  Boyer.  being 
indebted  to  the  Third  National  Rank  of  Bloomington,   Illinois,  with 
vS.    S.    Porter,   G.   A.    Griggs,   John   Niccolls   and   E.    A.    Vencill.   as 
sureties  for  the  Home  Nursery  Company  in  the  sum  of  $8,400,  as 
evidenced  by  a  promissory  note   executed  by  them,   June    12,    1893, 
executed  and  delivered  to  the  bank  a  mortgage  upon  185  acres  of  land 
in  Whiteside  county  for  the  purpose  of  securing  its  payment ;  that 
the   mortgage  was   given   subject   to   a  prior  one   for  $2,000  to   the 
Anthony  Loan  and  Trust  Company ;  that  Griggs,  Niccolls  and  Vencill 
are  insolvent;  that  on  January  22,  1894,  judgment  was  entered  upon 
the  note,  for  $9,110.66;  that  Porter  paid  the  judgment  in  full;  that 
Porter  assigned  his  right  to  subrogation  as  co-surety  to  complainants 
and  procured   the   bank   to   assign   the   judgment    and   mortgages   to 
complainants  for  a  consideration  of  $2,000,  and  that   P)Oyer,  on  the 
9th   of   June,    1894,   and   long  after  the   mortgage   to   the   bank   was 
placed  upon  record,  conveyed  the  land  to  J.  S.  Garrett.     The  bill  asks 
for  a  decree  in  favor  of  complainants  to  the  extent  of  the  right  of 
Porter  and  the  bank,  for  an  accounting  to  ascertain  what  is  due  com- 
plainants and   for  an  order  of   sale  of  the   mortgaged  premises,   all 
subject  to  the  rights  of  the  Anthony  Loan  and  Trust  Company. 
The  demurrer  is  by  Garrett  and  wife. 

We  entertain  no  doubt  upon  the  proposition  that  Porter  was  subro- 
gated to  all  the  security  of  the  bank  against  Boyer.  The  doctrine  is 
well  established  that  a  surety  who  pays  the  debt  of  his  principal  will 
be  subrogated  to  all  the  securities  and  eciuities  held  by  the  creditors 
against  the  principal.  I  wStory's  Equity  Jurisprudence,  sec.  499;  2 
Brandt,  on  Suretyship,  479;  Phares  v.  Barbour,  49  111.  370;  Rice  et  al. 
V.  Rice  et  al.,  108  Til.  199;  Lochenmeycr  v.  Forgarty,  112  111.  572. 

vSo  firmly  committed  is  our  Supreme  Court  to  that  doctrine  that  it 
has  been  held  the  creditor  c.-m  not  release  the  security  whit-li  it  holds, 


206  MISCELLANEOUS.  (Part.  3 

to  the  prejudice  of  the  surety.  City  National  Bank  of  Ottawa  et  ah 
V.  Dudgeon  et  al ;  65  111.  11. 

Upon  the  same  principle  a  surety  who  pays  the  debt  for  w'hich  he 
and  a  co-surety  are  liable  will  be  subrogated  to  the  rights  of  the  creditor 
against  the  co-surety  upon  securities  given  by  him  to  the  extent  of  his 
right  to  compel  contribution  from  the  co-surety. 

The  fact  that  the  debt  was  charged  to  a  judgment  before  it  was 
paid  does  not  afifect  Porter's  right  of  subrogation.  Where  a  mort- 
gage is  given  to  secure  a  debt,  and  a  debt  becomes  merged  in  a  judg- 
ment, the  mortgage  stands  as  security  for  the  judgment.  Wayman  et 
ux.  V.  Cochrane,  35  111.  151  ;  Dacit  v.  Bates  et  al.,  95  111.  493.  Satis- 
faction of  the  judgment  by  a  surety  paying  it  would  undoubtedly  en- 
title such  surety  to  an  action  on  the  mortgage. 

The  most  serious  question  in  the  case  is  whether  Porter's  right  of 
subrogation  is  assignable.  Whether  the  collateral  security  to  which 
a  surety  becomes  subrogated  by  reason  of  paying  the  debts  can  be  as- 
signed so  as  to  enable  the  assignee  to  maintain  a  suit,  is  a  question 
which  has  never  been  presented  to  the  courts  of  last  resort  in  this 
State,  so  far  as  we  are  advised.  It  has  been  so  held  in  Indiana.  Nuni- 
ford  v.  Frith,  68  Ind.  83;  Frank  v.  Taylor,  130  Ind.,  145.  In  Harris 
on  Subrogation,  Sec.  199  the  author,  after  stating  that  the  surety  is 
entitled  to  subrogation  in  a  court  of  equity  whether  there  has  been  an 
actual  assignment  of  the  collateral  to  him  or  not,  says : 

''Not  only  is  this  true,  but  the  surety  so  paying  the  debt  of  his  prin- 
cipal, and  thus  acquiring  the  right  of  subrogation,  may  assign  over  to 
any  one  his  demand  and  equitable  claim  against  the  principal,  and  his 

assigns  will  be  subrogated  to  the  rights  of  the  creditor,  and  may  take 
his  place,  with  all  the  securities,  rights,  remedies,  privileges  and  prior- 
ities." 

To  us  it  seems  consonant  with  reason  that  if  the  satisfaction  of  the 
judgment  by  Porter  left  the  mortgage  still  alive,  with  the  right  in  him 
to  foreclose  to  the  extent  of  his  right  to  compel  Boyer  to  then  con- 
tribute, Porter  could  assign  to  appellants  for  a  valuable  consideration, 
and  they  would  thereby  be  subrogated  to  all  the  rights  of  the  Third 
National  Bank  and  Porter  in  the  mortgage.     .     . 


Cll.    11.)  MISCELLANEOUS.  207 

.     DAVIES  V.  HUMPHREYS. 

(In  the  Exchequer,  1840.  (>  ^f.  &  W.   1.5:5.) 

Parke,  B.  In  these  cases  actions  were  brought  by  the  plaintiff, 
one  of  the  makers  of  a  joint  and  several  promissory  note,  dated  the 
27th  of  December,  1827,  for  the  sum  of  £300.  with  interest,  to  re- 
cover from  the  two  other  makers.  Evan  Humphreys,  and  John 
Humphreys,  a  part  of  the  money  paid  by  him  to  the  payee,  he  having 
paid  the  whole.  In  the  action  against  Evan  Humphreys,  the  plain- 
tiff claimed  the  whole,  alleging  that  the  defendant  was  the  principal 
debtor.  Against  the  defendant  John  Humphreys,  he  claimed  a 
moiety  of  what  he  had  paid,  alleging  that  the  defendant  was  a  co- 
surety. There  were  two  pleas, — non  assumpsit,  and  the  Statute  of 
Limitations ;  and  on  the  trial  at  the  Spring  Assizes,  before  my  Brother 
Coleridge,  it  appeared  that  the  plaintiit  had  paid  the  whole  of  the 
debt  and  interest,  of  which  the  sum  of  £30  pounds  only  was  paid 
within  six  years  before  the  commencement  of  the  suit,  the  residue 
having  been  discharged  before.  For  this  sum  the  plaintiff  recovered 
against  Evan  Humphreys,  leave  being  reserved  by  the  learned  Judge 
to  move  to  increase  the  amount  to  the  whole  sum  paid;  against  John 
Humphreys,  the  plaintiff  recovered  a  moiety  of  £30.  and  permission 
was  also  given  to  move  to  increase  that  verdict.     .     .     . 

On  the  other  hand,  the  rule  for  increasing  the  amount  of  the  verdict 
against  Evan  Humphreys,  the  principal,  must  also  be  discharged; 
for  it  is  clear  that  each  sum  the  plaintiif,  the  surety,  paid,  was  paid 
in  ease  of  the  principal,  and  ought  to  have  been  paid  in  the  first  in- 
stance by  him,  and  that  the  plaintiif  had  a  right  of  action  against 
him  the  instant  he  paid  it.  for  so  much  money  paid  to  his  use.  How- 
ever convenient  it  might  be  to  limit  the  number  of  actions  in  respect 
of  one  suretyship,  there  is  no  rule  of  law  which  requires  the  surety 
to  pay  the  whole  debt  before  he  can  call  for  reimbursement.  The 
consequence  is,  that  the  plaintiff's  right  of  action  against  the  prin- 
cipal must  be  limited  to  the  full  anioimt  of  all  the  paynu-nts  wilhin  six 
years,  and  this  being  the  amount  for  which  the  verdict  was  t.iken.  the 
rule  to  enter  a  verdict  for  a  larger  sum  must  be  discharged,  .\gainst 
the  co-surety  the  case  is  different— the  Court  will  give  it  further  con- 
sideration. 


i^08  MISCELLANEOUS.  (Part,  o 

And  now,  in  this  Term,  the  judgment  of  the  Court,  on  the  remaining 
point  in  the  action  against  John  Humphreys,  the  surety,  was  deHvered 
by 

Parke,  B.  This  was  an  action  by  the  plaintiff  against  the  defendant, 
his  co-surety  on  a  promissory  note,  dated  the  27th  of  October,  1827, 
for  the  sum  of  £300,  with  interest,  to  recover  a  moiety  of  the  whole 
amount  which  he  had  paid  to  the  payee.  A  rule  granted  in  this  case, 
as  well  as  one  which  was  granted  in  another  action  on  the  same  note 
against  the  principal,  was  argued  in  the  Sittings  after  Trinity  Term. 
In  the  course  of  the  last  Term,  the  Court.  .  .  .  reserved  for  furth- 
er consideration  the  question,  at  what  time  the  right  of  one  co-surety 
to  sue  the  other  for  contribution  arises. 

This  right  is  founded  not  originally  upon  contract,  but  upon  prin- 
ciple of  equity,  though  it  is  now  established  to  be  the  foundation  of  an 
action,  as  appears  by  the  cases  of  Co  well  v.  Edwards  (2  B.  &  P.  269,) 
and  Craythorne  v.  Swinburne  (14  Ves.  164)  ;  though  Lord  Eldon  has, 
and  not  without  reason,  intimated  some  regret  that  the  Courts  of 
law  have  assumed  a  jurisdiction  on  this  subject,  on  account  of  the 
difificulties  in  doing  full  justice  between  the  parties.  What  then  is 
the  nature  of  the  equity  upon  which  the  right  of  action  depends?  Is 
it  that  when  one  surety  has  paid  any  part  of  the  debt,  he  shall  have 
a  right  to  call  on  his  co-surety  or  co-sureties  to  bear  a  proportion  of  the 
burthen,  or  that,  when  he  has  paid  more  than  his  share,  he  shall  have 
a  right  to  be  reimbursed  whatever  he  has  paid  beyond  it  ?  or  must  the 
whole  of  the  debt  be  paid  by  him  or  some  one  liable,  before  he  has 
a  right  to  sue  for  contribution  at  all  ?  We  are  not  without  authority 
on  this  subject,  and  it  is  in  favor  of  the  second  of  these  propositions. 
Lord  Eldon,  in  the  case  of  Ex  parte  Gifford  (6  Ves.  805),  states,  that 
sureties  stand  with  regard  to  each  other  in  a  relation  which  gives  rise 
to  this  right  amongst  others,  that  if  one  pays  more  than  his  proportion, 
there  shall  be  a  contribution  for  a  proportion  of  the  excess  beyond 
the  proportion  which,  in  all  events,  he  is  to  pay;  and  he  expressly 
says,  ''that  unless  one  surety  should  pay  more  than  his  moiety,  he 
would  not  pay  enough  to  bring  an  assumpsit  against  the  other."  And 
this  appears  to  us  to  be  very  reasonable ;  for,  if  a  surety  pays  a  part 
of  the  debt  only,  and  less  than  his  moiety,  he  cannot  be  entitled  to 
call  on  his  co-surety,  who  might  himself  subsequently  pay  an  equal 
or  greater  portion  of  the  debt ;  in  the  former  of  which  cases,  such  co- 
surety would  have  no  contribution  to  pay,  and  in  the  latter  he  would 


Ch.    11.)  MISCELL-VNEOrS.  209 

have  one  to  receive.     In  truth,  therefore,  until  the  one  has  paid  more 
than  his  proportion,  either  of  the  whole  deht.  or  of  that  part  of  the 
debt  which  remains  unpaid  by  the  principal,  it  is  not  clear  that  he 
ever  will  be  entitled  to  demand  anything  from  the  other ;  and  before 
that,  he  has  no  equity  to   receive   a   contribution,   and   consequently 
no  right  of  action,  which  is  founded  on  the  equity  to  receive  it.    Thus, 
if  the  surety,  more  than  six  years  before  the  action,  has  paid  a  por- 
tion of  the  debt,  and  the  principal  has  paid  the   residue   within   six 
years,  the  Statute  of  Limitations  will  not  run  from  the  payment  by  the 
surety,  but  from  the  payment  of  the  residue  by  the  principal,  for  until 
the  latter  date  it  does  not  appear  that  the  surety  has  paid  more  than 
his  share.    The  practical  advantage  of  the  rule  above  stated  is  consid- 
erable, as  it  would  tend  to  multiplicity  of  suits,  and  to  a  great  in- 
convenience, if  each  surety  might  sue  all  the  others  for  a  ratable  pro- 
portion of  what  he  had  paid,  the  instant  he  had  paid  any  part  of  the 
debt.     But,  whenever  it  appears  that  one  has  paid  more  than  his  pro- 
portion of  what  the  sureties  can  ever  be  called  upon  to  pay.  then, 
and  not  till  then,  it  is  also  clear  that  such  .part  ought  to  be  repaid  by 
the  others,  and  the  action  will  lie  for  it.     It  might,  indeed,  be  more 
convenient  to  require  that  the  whole  amount  should  be  settled  before 
the  sureties  should  be  permitted  to  call  upon  each  other,  in  order  to 
prevent  multiplicity  of   suits ;   indeed,   convenience   seems  to   require 
that  Courts  of  equity  alone  should  deal  with  the  subject ;  but  the  right 
of  action  having  been  once  established,  it  seems  clear  that   when  a 
surety  has  paid  more  than  his  share,  every  such  payment  ought  to  be 
reimbursed  by  those  who  have  not  paid  theirs,  in  order  to  place  him 
on  the  same  footing.     If  we  adopt  this  rule,  the  result  will  be.  that 
here,  the  whole  of  what  the  plaintiff  has  paid  within  six  years  will 
be  recoverable  against  the  defendant,  as  the  plaintilT  had  paid  more 
than  his  moiety  in  the  year   1831  ;  and  consequently  the   nile  must 
be  absolute  to  increase  the  amount  of  the  verdict  from  £15  to  £?>0. 


ACHESON  V.  MILLER. 

(Supreme  Court  of  Ohio,   18.'-.3,  2  O.  St.  203.) 

CaldwiCll,  J.       This  suit  in  the  court  below  was  one  for  contribu- 
tion.    The  plaintiff  in  the  action  and  the  (k-fendant.  with   four  other 
3  PVi— 14 


210  MISCELLANEOUS.  (Part.  .*> 

were  the  sureties  for  Cxarry  Lewis  on  a  draft  for  $5,000.  Lewis  be- 
came insolvent,  and  judgment  was  rendered  against  all  the  indorsers, 
and  also  a  judgment  against  Lewis,  the  principal.  Ivxecution  was 
issued,  and  four  of  the  indorsers.  of  whom  Reuel  Miller  was  one, 
having  indemnihed  the  sheritf .  directed  him  to  levy  on  a  store  of  goods 
recently  the  property  and  in  the  possession  of  Garry  Lewis,  the 
principal  debtor,  but  which  goods  were  assigned  about  that  time  to 
Daniel  Gilbert.  Gilbert  brought  suit  against  the  sherifif  and  the  four 
mdorsers  that  au-ected  him  to  levy,  and  recovered  a  judgment  for  the 
sum  of  $5,354.61.  the  value  of  the  goods;  which  judgment  was  paid 
off  by  these  four  indorsers.  Miller  paid  the  one-fourth  of  it.  The 
goods  were  sold  by  the  sheriff  and  applied  on  the  judgment,  and  paid 
on  it  $3,135.73.  Acheson  not  having  anything  to  do  with  the  levy 
on  the  goods,  has  paid  nothing,  and  this  suit  was  brought  by  Miller 
against  Acheson  to  require  him  to  contribute  his  share  of  the  $3,135.73 
paid  on  the  judgment  by  the  sale  of  the  goods. 

On  the  trial  in  the  court  of  common  pleas,  after  the  plaintiff  had 
given  in  his  evidence  and  rested,  the  defendant  moved  for  a  non-suit, 
which  the  court  refused  and  gave  judgment  for  the  plaintiff.  The 
defendant  presented  a  bill  of  exceptions  setting  forth  the  evidence, 
which  was  signed  and  made  a  part  of  the  record. 

The  question  presented  on  this  record  is,  whether  contribution  can 
be  had  in  such  a  case. 

It  is  said,  on  the  part  of  the  plaintiff  in  error,  that  Miller  and  those 
who  acted  with  him  were  wrong-doers — that  they  committed  a  trespass 
in  having  the  goods  levied  on,  and  that  therefore  he  is  not  entitled  to 
contribution  for  the  payment  made  by  the  proceeds  of  such  goods. 

The  rule  that  no  contribution  lies  between  trespassers,  we  ap- 
prehend is  one  not  of  universal  application.  We  suppose  it  only  ap- 
plies to  cases  where  the  persons  have  engaged  together  in  doing  wan- 
tonly or  knowingly  a  wrong.  The  case  may  happen,  that  persons  may 
join  in  performing  an  act,  which  to  them  appears  to  be  right  and 
lawful,  but  which  may  turn  out  to  be  an  injury  to  the  rights  of  some 
third  party,  who  may  have  a  right  to  an  action  of  tort  against  them. 
In  such  case,  if  one  of  the  parties  who  have  done  the  act  has  been  com- 
pelled to  pay  the  amount  of  the  damage,  is  it  not  reasonable  that  those 
who  were  engaged  with  him  in  doing  the  injury,  should  pay  their 
proportion?     The   common   understanding   and   justice   of   humanity 


Cll.    11.)  MISCELL-\NEOUS.  211 

would  say  that  it  would  be  just  and  right  that  each  of  the  parties  to 
the  transaction  should  pay  his  proportion  of  the  damage  done  by  their 
joint  act;  and  we  see  no  reason  why  the  moral  sense  of  a  court  "should 
be  shocked  by  such  a  result.  And  we  think  this  view  of  the  case  is 
fully  sustained  by  the  cases  cited  by  counsel  for  the  defendant  in 
error.  In  the  case  of  Adamson  v.  Jarvis.  4  Bing.  66,  in  speaking  on 
this  subject,  Best,  C.  J.,  says:  "From  the  concluding  part  of  Lord 
Kenyon's  judgment  in  Merrywether  v.  Nixon,  and  from  reason,  justice, 
and  soimd  policy,  the  rule  that  wrong-doers  can  not  have  redress 
or  contribution  against  each  other,  is  confined  to  cases  where  the 
person  seeking  redress  must  be  presumed  to  have  known  that  he  was 
doing  a  wrong." 

The  same  doctrine  is  distinctly  laid  down  in  the  case  of  Betts  v. 
Gibbons,  2  Ad.  &  El.  57.  From  these  and  other  cases  referred  to,  we 
think  the  reasonable  and  common-sense  rule  and  the  legal  one  are 
the  same,  viz :  that  when  parties  think  they  are  doing  a  legal  and 
proper  act  contribution  will  be  had ;  but  when  the  parties  are  conscious 
of  doing  a  wrong,  courts  will  not  interfere.     .     .     . 


McCONNELL  v.  SCOTT. 

(Supreme  Court  of  Ohio,  184fi,  1.1  O.  401.) 

This  is  a  case  in  chancery,  reserved  in  the  county  of  Morgan. 

The  bill  is  filed  by  the  complainant,  as  a  surety  of  the  principal 
debtor,  against  him  and  others,  in  whose  hands  the  princi])al  debtor 
has  credits.  The  bill  states,  that  judgment  at  law  has  been  rendered 
against  both  principal  and  surety;  that  the  principal  debtor  is  insolvent, 
and  seeks  the  appropriation  of  the  credits  of  the  princii)al,  in  tlu' 
hands  of  the  debtors,  to  the  satisfaction  of  the  judgment  against  both 
him  and  the  complainant,  who  is  his  surety. 

Wood,  C.  J.  The  question  raised  by  counsel  is,  whether  a  court  of 
equity  will  entertain  jurisdiction  in  a  case  like  this?  It  is  insisted,  in 
argument,  that  the  complainant  is  without  remedy  in  any  foiin,  until 
the  actual  advance  of  ihe  money  due  from  his  princi|ial.  At  law.  tin- 
position  is  doubtless  correct.  An  action  to  recover  for  money  paid 
for  another  does  not  lie,  imless  payment  is  made  and  proved  on  the 


212  MISCELLANEOUS.  (Part.  3 

trial ;  nor  can  the  principal  debtor  be  made  liable  at  law  for  sub- 
jecting his  surety  to  the  peril  of  paying  his  debt,  until  the  injury 
actualh'  accrues  by  payment.  This  is  all  very  true;  but  there  is,  never- 
theless, a  great  variety  of  circumstances,  where  equity  steps  in,  for  the 
reason  that  the  law  affords  no  adequate  redress,  and  prevents  impend- 
ing or  threatened  injury. 

The  surety,  however,  occupies  ground  peculiar  to  his  own  relation, 
and  is  favored  in  both  legal  and  equitable  tribunals.  Numerous  cases 
are  cited  by  counsel,  where  principles  analogous  to  those  sought  to  be 
applied  here  have  been  recognized  in  equity;  and  we  think  the  com- 
plainant is  within  the  authority  of  such  adjudication.  Indeed,  in  1 
Ohio,  533,  the  precise  question  now  raised  received  the  sanction  of 
this  court,  and,  in  our  view,  the  authority  of  that  case  should  not  be 
shaken. 

What  are  the  obligations  of  the  principal  debtor  to  his  surety? 
Certainly  to  save  him  harmless  from  every  injury  which  may  result 
from  such  relation;  and  a  promise  is  implied  to  this  effect,  as  valid 
as  if  made  in  express  terms,  between  the  parties.  5  Cow.  596.  There  is 
no  adequate  remedy  at  law,  when  the  principal  debtor  is  insolvent,  by 
which  his  effects  and  credits  in  the  hands  of  others  can  be  made  to 
be  applied  for  the  benefit  of  the  surety.  Certainly  not,  as  we  have 
already  said,  without  the  surety  first  pays  the  debt.  And  such  pay- 
ment may  be  attended  with  great  inconvenience  and  severe  sacrifice 
of  property — burdens  which  surely  ought  not  to  be  imposed  if  they 
can,  with  propriety  and  justice,  be  avoided.  In  6  Ves.  734,  it  is  said 
"that  equity  will  compel  the  principal  to  pay  the  debt,  after  due,  at 
the  instance  of  the  surety."  In  4  Def.  47,  "that  it  would  be  hard  on 
sureties,  if  they  were  compelled  to  wait  till  judgment  against  them, 
or  they  had  paid  the  debt,  before  they  could  have  recourse  to  their 
principal,  who  might  waste  his  efifects  before  their  eyes."  Other  cases 
might  be  cited  to  the  same  import. 

If,  then,  the  principal  debtor  may  be  forced  to  pay  the  debt  at  the 
instance  of  the  surety,  it  would  seem  to  follow  that  the  property,  credits, 
or  effects  of  such  principal  may  be  followed  into  the  hands  of  others. 
It  must  not  be  understood  that  the  judgment  creditor  can  be  delayed 
in  his  remedy  against  the  surety.  He  has  his  judgment,  and  may 
take  out  his  execution  at  pleasure ;  but  if  he  has  not  collected  his  money 
of  the  surety,  and  the  surety  has  made  it  out  of  the  property  or  credits 


Ch.    11.)  MISCELLANEOUS.  213 

of  the  principal,  equity  will  decree  its  application  in  discharge  of  the 
creditor's  judgment  against  the  surety.     Decree  for  complainant. 


BROWN  V.  COZARD. 

(Supreme  Court  of  Illinois,  1873,  68  111.  178.) 

Sheldon,  J-  The  owner  of  a  certain  quarter  section  of  land,  in 
the  south-west  quarter  of  which  he  had  a  homestead  right,  having 
given  a  mortgage  on  the  quarter  section,  in  which  he  had  released  his 
homestead  right,  and  there  being  a  judgment  against  him  which  was 
a  lien  upon  the  quarter  section,  the  judgment  creditor  brought  this 
bill  in  equity  against  the  mortgagee  and  the  common  debtor,  to  compel 
the  former  to  resort  first  for  the  satisfaction  of  his  mortgage  to  the 
south-west  quarter  of  the  quarter  section,  so  that  the  judgment,  with 
the  residue  of  the  mortgage  debt,  if  any,  might  be  satisfied  out  of  the 
remaining  portion  of  the  land.  A  demurrer  to  the  bill  in  the  court 
below  was  sustained,  and  the  bill  dismissed.    This  is  assigned  for  error. 

In  support  of  the  bill,  that  principle  of  equity  is  invoked,  that  if 
one  party  has  a  lien  on  or  interest  in  two  funds  for  a  debt,  and  another 
party  has  a  lien  on  or  interest  in  one  only  of  the  funds,  for  another 
debt,  the  latter  party  has  a  right  in  eciuity  to  compel  the  former  to 
resort  to  the  other  fund,  in  the  first  instance,  for  satisfaction,  if  that 
course  is  necessary  for  the  satisfaction  of  the  claims  of  both  parties, 
wl\enever  it  will  not  operate  to  the  prejudice  of  the  party  entitled  to 
the  double  fund.  The  question  is,  whether  this  is  a  case  for  the  ap- 
plication of  the  principle.  The  mortgagee  has  an  undoubted  right 
to  sell  the  homestead  for  the  satisfaction  of  the  mortgage;  the  judg- 
ment creditor  has  not  that  right,  as  respects  the  judgment.  It  will 
produce  no  injury  to  the  mortgagee,  to  be  compelled  to  resort  first  to 
the  tract  in  which  the  homestead  right  exists,  as  resi)ccls  the  judgment. 
but  has  been  released  as  respects  the  mortgage. 

So  far,  the  principle  may  apply;  but  ibe  doctrine  is  aihndrd  witb 
this  qualification:  that  no  injustice  be  done  to  the  common  debtor.  1 
Story,  Eq.  Jur.,  sec.  642.  The  statute  provides,  that  no  release  or 
waiver  of  the  homestead  exem])tion  shall  be  valid,  unless  thi'  same 
shall  be  in  writing,  subscribed  by  tlie  householder  and  bis  wile,  il  be 
have  one,  and  be  acknowledged,  etc. 


214  MISCELLANEOUS.  (Part.  'J 

The  object  sought  by  this  suit  is  to  make  the  release  of  the  home- 
stead exemption,  which  has  been  made  to  the  mortgagee,  operative  for 
the  benefit  of  a  judgment  creditor,  to  whom  there  has  been  no  release 
of  the  homestead  right  in  writing. 

If  the  end  sought  should  be  attained,  the  judgment  creditor  will 
have  derived  the  benefit  of  the  release  of  the  homestead  exemption, 
not  by  virtue  of  a  release  of  it,  in  writing,  to  himself,  but  by  an  order 
of  the  court.  The  waiver  of  the  homestead  exemption  was  in  favor 
of  the  mortgagee,  and  might  have  been  made  in  the  personal  confidence 
that  he  would  first  exhaust  all  the  residue  of  the  quarter  section  of  land 
before  resorting  to  the  particular  tract  in  which  the  homestead  right 
existed,  and  in  the  belief  that  such  residue  would  be  sufficient  to  satis- 
fy the  mortgage,  so  that  the  homestead  would  remain  untouched. 

The  mortgagee  himself,  of  his  own  accord,  may  first  resort,  for 
the  satisfaction  of  his  mortgage,  to  the  tract  in  which  the  homestead 
right  exists  as  against  the  judgment ;  of  this  the  mortgagor  would  have 
no  cause  to  complain,  because  it  would  be  in  the  exercise  of  a  power 
which  he  himself  had  voluntarily  bestowed  upon  the  mortgagee.  But 
when  the  mortgagee,  not  by  his  own  voluntary  action,  and  for  his  own 
benefit,  but  at  the  instance  and  for  the  benefit  of  a  judgment  creditor, 
for  the  purpose  of  having  his  judgment  satisfied,  is  compelled  to 
resort  first  for  the  satisfaction  of  his  mortgage  to  the  tract  subject 
to  the  homestead  exemption  as  respects  the  judgment,  the  mortgagor 
then  would  seem  to  have  just  cause  of  complaint,  that  his  homestead 
had  been  taken  from  him  in  a  mode  and  for  the  benefit  of  a  creditor, 
not  contemplated  by  the  statute,  and  whereto  he  had  never  given 
his  assent. 

This  would  be  m  violation  of  the  intent  of  the  statute,  that  the 
homestead  right  should  not  be  injuriously  afifected  for  debt,  without 
the  express  assent,  in  writing,  of  the  debtor. 

The  purpose  of  the  statute  is  a  benign  one ;  to  secure  to  the  debtor 
and  his  family  a  home,  sacred  from  sale  for  debt,  save  by  the  freely 
given  assent  of  himself  and  his  wife,  in  writing. 

And  we  think  a  court  of  equity  should  act  in  the  exercise  of  the 
power  which  is  invoked  in  the  present  instance,  so  far  as  may  be,  in 
such  a  way  as  to  advance  and  not  to  thwart  the  policy  of  the  statute. 

Being  of  opinion  that  the  relief  sought  would  be  in  contravention  of 
the  spirit  and  policy  of  the  homestead  act,  and  to  the  injury  of  the 


Cll.    n.)  MISCEI^ANEOUS.  l^L") 

common  debtor,  we  think  the  demurrer  was  properly  sustained  and  the 
bill  rightly  dismissed. 
The  decree  is  affirmed. 


WADSWORTH  v.  SCHTSSELBAUER. 

(Supreme  Court  of  Alinnesota,  1884,  :?2  Minn.  84.) 

Mitchell,  J.  There  are  two  classes  of  cases,  both  commonly 
called  creditors'  suits,  which,  although  closely  allied,  are  clearly  dis- 
tinonishable.  The  tirst.  a  creditor's  suit  strictly  so-called,  is  where 
the  creditor  seeks  to  satisfy  his  judgment  out  of  the  equitable  assets 
of  the  debtor,  which  could  not  be  reached  on  execution.  The  general 
rule  is  that  such  an  action  cannot  be  brought  until  the  creditor  has 
exhausted  his  remedy  at  law  by  the  issue  of  an  execution  and  its  re- 
turn unsatisfied.  This  was  required  becau.se  equity  would  not  aid 
the  creditor  to  collect  his  debt  until  the  legal  assets  were  exhausted, 
for,  until  this  was  done,  he  might  have  an  adequate  remedy  at  law. 
The  execution  had  to  be  issued  to  the  county  zvhcrc  the  debtor  resided. 
if  a  resident  of  the  state.  Its  issue  to  another  county  would  not  suffice. 
Reed  v.  Wheaton,  7  Paige.  663.  The  second  class  of  cases  is  where 
property  legally  liable  to  execution  has  been  fraudulently  conveyed  or 
incumbered  by  the  debtor,  and  the  creditor  brings  the  action  to  set 
aside  the  conveyance  or  incumbrance  as  an  ol)struction  to  the  eiiiorce- 
ment  of  his  lien;  for.  though  the  property  might  be  sold  on  execution 
notwithstanding  the  fraudulent  conveyance,  the  creditor  will  not  be 
required  to  sell  a  doubtful  or  obstructed  title.  In  the  latter  class  of 
cases,  the  prevailing  doctrine  is  that  it  is  not  necessary  to  allege  that 
an  execution  has  been  returned  unsatisfied,  or  that  tlir  (Ubtor  has  no 
other  property  out  of  which  the  judgment  can  be  satished  ;  for  that 
is  not  the  ground  upon  which  the  court  of  equity  assumes  to  grant 
relief  in  such  cases,  but  upon  the  theory  thai  the  Ir.iuduleiU  conveyance 
is  an  obstruction  which  prevents  the  creditor's  lien  from  being  efficient- 
ly enforced  upon  the  property.  As  to  him  the  conveyance  is  void,  and 
he  has  a  right  to  have  liiniself  i)lac(<l  in  llie  same  position  as  il  it  liad 
never  been  made.  The  fact  that  other  properl\  has  lu'c-n  rel.iined  by 
the  debtfjr  may  be  evidence  that  the  conveyance  is  not  frau<lnleni  :  Imt  il 


216  MISCELLANEOUS.  (Part,  o 

the  grantee's  title  be  tainted  with  fraud,  he  has  no  right  to  say  that  all 
other  means  to  satisfy  the  debt  shall  be  exhausted  before  he  shall 
be  disturbed.  Botsford  v.  Beers,  11  Conn.  369;  Weightman  v.  Hatch, 
17  111.  281  ;  Vasser  v.  Henderson.  40  Miss.  519. 

There  is  much  conflict  of  authority  as  to  how  far  the  creditor  must 
first  proceed  at  law.     It  has  been  held  in  some  cases  that  if  an  exe- 
cution has  not  been  returned  unsatisfied,  an  execution  must  be  issued 
and  the  action  brought  in  aid  of  an  execution  then  outstanding.     Such 
seems  to  be  the  latest  view  of  the  courts  of  New  York,  after  much 
vacillation  and  conflict  of  decision.    Adsit  v.  Butler,  87  N.  Y.  585.    But 
the  prevailing  and,  as  we  think,  on  principle,  the  better  rule  is  that 
the  creditor  need  only  proceed  at  law  far  enough  to  acquire  a  lien  upon 
the  property  sought  to  be  reached  before  filing  his  bill  to  set  aside  a 
fraudulent  conveyance.     The  extent  to  which  he  must  proceed  to  do 
this  will  depend  on  the  nature  of  the  property.    If  it  be  personal,  there 
must  be  a  levy,  for  until  this  is  made  he  has  no  lien.     If  it  be  real 
estate,  it  is  enough  to  obtain  judgment,  and  docket  it  in  the  county 
where  the  lands  are  situated.     I  Am.  Lead.  Cas.  54,  55 ;  2  Barb.  Ch. 
Pr.    160;    Bump    on    Fraudulent    Conveyances,    523;    Weightman    v. 
Hatch,  supra;  Newman  v.  Willetts,  52  111.  98;  Vasser  v.  Henderson, 
supra;  Dodge  v.  Griswold,  8  N.  H.  425;  Tappan  v.  Evans,  11  N.  H. 
311;   Cornell  v.   Radway,  22  Wis.   260;   Clarkson  v.   De   Peyster,   3 
Paige,  320;  Dunham  v.  Cox,  10  N.  J.  Eq.  437-466.     The  lien  on  the 
land,  and  the  right  to  sell  it  in  satisfaction  of  the  debt,  is  the  basis  of 
the  right  to  have  the  deed  set  aside. 

This  was  a  suit  to  set  aside  a  fraudulent  conveyance  of  real  estate 
executed  by  the  judgment  debtor,  and  hence  falls  within  the  second 
class.  It  follows  from  what  has  been  said  that  it  was  not  necessary 
to  issue  an  execution  at  all  before  commencing  the  present  action. 
Hence  it  is  wholly  immaterial  that  it  does  not  appear  that  it  was 
directed  to  the  county  where  the  debtor  resided.  In  our  view  the 
complainant  is  good.    Order  reversed. 


McCEURG  V.  PHILLIPS. 

(Supreme  Court  of  Missouri,  1872,  49  Mo.  315.) 

Bliss,  J.     The  plaintiff  filed  his  petition  to  foreclose  a  mortgage, 
but  the  instrumeht  not  having  been  sealed,  he  sets  out  that  the  parties 


Cll.    11.)  MISCELLANEOUS.  217 

intended  that  it  should  have  been  sealed,  and  that  the  omission  to 
do  so  was  a  mistake;  and  he  asks  to  have  it  reformed,  and  then  that 
the  land  be  sold  for  the  payment  of  the  debt.  Defendant  Phillips  was 
the  mortgagee  and  fails  to  appear.  Defendant  Paul,  who  is  charged  as 
purchaser  with  notice,  demurs  to  the  petition  because  the  facts  stated 
do  not  constitute  a  cause  of  action.  The  demurrer  was  sustained, 
and  plaintiff  appeals.     .     . 

But  it  was  not  necessary  to  seek  the  reformation  of  the  instrument. 
If  the   mortgagee  desired  its  correction   merely,   without   seeking  to 
enforce  it.  in  order  to  make  it  a  perfect  mortgage  conveying  the  legal 
title,  or  if  he  desired  to  put  it  in  a  condition  for  a  proceeding  under 
the  statute,  then  it  would  be  necessary  to  prove  the  mistake  and  obtain 
an  order  to  correct  it.     But  without  any  such  correction  it  is  a  good 
equitable  mortgage,  and  can  be  enforced  by  an  action  analogous  to  a 
chancery  proceedings.     Before  the  adoption  of  the  code,  a  proceeding 
under  the  statute  was  held  to  be  an  action  at  law,  and  was  not  govern- 
ed by  rules  in  chancery.     (Carr  v.  Holbrook,  1   Mo.  240;  Thayer  v. 
Campbell,  9  Mo.  277;  Riley's  Adm'r  v.  McDook's  Adm'r,  24  Mo.  265; 
Fithian  v.  Monks,  43  Mo.  502.)     The  last  two  cases  arose  since  the 
adoption  of  the  code,  and  the  same  distinction  is  taken  between   a 
statutory  foreclosure  and  a  proceeding  under  the  general  power  of 
courts  of  equity  in  mortgages  and  liens.     To  enable  one  to  foreclose 
under  this  statute  and  obtain  a  general  judgment  and  execution  for  any 
balance  that  may  remain  due  after  sale  of  the  mortgaged  premises, 
the  mortgage  must  be  regular ;  but  if  it  be  irregular,  as  by  the  omission 
of  any  requisite  to  a  complete  instrument  still  it  is  held  to  create  a 
lien — a  trust  for  the  benefit  of  the  creditor— which  can  be  enforced 
in  equity.     ... 


ATKINS  v.  CHILSON. 

(Supreme  Court  of  Massachusetts,  1846,  52  Mass.   112.') 

WiLDi-,  J.  This  was  a  writ  of  entry  to  recover  possession  of  a  lot 
of  land,  formerly  leased  by  the  demandant  to  the  tenant  for  a  term  of 
years  not  yet  expired. 

The  action  is  founded  on  an  alleged  breach  of  a  onditidn  in  the 
lease,  by  the  non-payment  of  rent,  and  a  clause  of  entry  thereupon 
reserved  by  the  demandant  in  the  lease.     Tiic  tenant,  protesting  that 


218  MISCELLANEOUS.  (Part.  3 

no  forfeiture  had  accrued,  moved  the  court,  at  the  trial,  to  stay  all 
further  procedings  in  the  case,  on  his  paying  the  rent  and  costs.  This 
motion  was  sustained  by  the  chief  justice,  who  presided  at  the  trial, 
and  the  questions  now  are,  whether  a  court  of  common  law  has  power 
to  grant  the  relief  prayed  for,  and  if  so,  whether  it  ought  to  be  granted 
on  the  facts  reported.     .     .     . 

That  a  court  of  equity  would  grant  relief  in  a  case  like  this  is  not 
questioned,  and  cannot  be  denied.     The  true  foundation  of  equitable 
relief,  in  cases  of  penalties  and  forfeitures,  is  limited  to  such  cases  as 
admit  of  compensation  according  to  the  original  intent  of  the  parties. 
And  in  all  cases  where  the  penalty  of  forfeiture  is  desired  to  secure 
the  payment  of  a  certain  sum  of  money,  a  court  of  equity  will  grant 
relief,  on  payment  of  the  money  secured,  with  interest;  as  in  case 
of  penalties  or  forfeitures  for  the  non-payment  of   rent,  and  other 
similar  cases.     2  Story  on  Eq.  sees.  1315,  1320;  Sanders  v.  Pope.  12 
Ves.  282 ;  Baxter  v.  Lansing,  7  Paige,  350.     It  is,  however,  denied  that 
courts  of  common  law  have  any  such  power.       But  the  authorities 
cited  by  the  counsel  for  the  tenant  abundantly  show  that  in  many  cases, 
and  for  a  long  period  of  time,  the  courts  of  common  law  in  England 
have  exercised  such  a  power,  by  granting  relief  in  support  of  equitable 
defences,  "for  the  easier,  speedier  and  better  advancement  of  justice," 
without  turning  the  party  over  to  a  court  of  equity.     A  fortiori  ought 
this  to  be  done  in  cases  where  courts  of  equity  have  no  jurisdiction, 
by  reason  of  the  limitation  of  their  powers.    The  ancient  common  law, 
as  known  and  administered  before  the  days  of  Bracton,  has  been  much 
improved  and  enriched  by  the  introduction  of  many  principles  of  the 
civil  law,  and  by  rules  of  practice  founded  on  justice  and  equity,  and 
by  the  labors  and  investigations  of  learned  judges  and  jurists,  who 
have  laid  down  the  just  rules  and  principles  by  which  the  courts  of 
common  law  are  to  be  governed,  at  the  present  day,  in  the  administra- 
tion of  justice. 

At  the  present  time,  and  long  before  our  separation  from  the  gov- 
ernment of  England,  courts  of  common  law  and  courts  of  equity  have 
and  had  concurrent  jurisdiction  in  many  cases;  such  as  cases  of 
fraud,  nuisance,  waste,  and  many  other  cases ;  although  the  theory  is. 
that  courts  of  equity  will  not  interpose  and  sustain  a  bill  for  relief, 
where  there  is  an  adequate  remedy  at  law— courts  of  equity  having 
been  originally  established  for  the  purpose  of  supplying  the  defects, 
and  correcting  the  rigors  or  injustice  of   the  common  law,   so  that 


Cll.    11.)  MISCKLLAXEOrS. 


21!) 


justice  may  be  distributed  and  enforced  in  ihe  most  perfect  manner, 
secundum  aequum  et  bon.um.  Courts  of  law.  therefore,  are  hound 
to  administer  justice,  where  they  may  consistently  with  the  principles 
and  rules  of  the  common  law,  and  not  to  compel  parties  to  resort 
to  courts  of  equity  to  obtain  relief.  They  will  stay  proceedings,  when 
thereby  full  justice  may  be  done,  and  in  cases  where  a  court  of  equitv 
would  enjoin  the  plaintiff  not  to  prosecute  his  action  at  law.  Thus 
unnecessary  expense  and  delay  are  avoided,  and  no  injustice  is  done. 
On  this  ground  courts  of  common  law  interpos.e  in  support  of  an 
equitable  defence.     .     .     . 

We  have  no  doubt,  therefore,  of  the  power  of  this  court  to  stay 
proceedings  in  support  of  an  equitable  defence.  And  if  we  have  such 
power,  that  it  ought  to  be  exercised  in  this  case,  no  one.  we  think,  can 
doubt.  We  cannot  imagine  a  more  unjust  and  oppressive  claim,  than 
that  which  the  demandant  attempts  to  enforce.  By  mistake,  the  tenant, 
as  it  was  said  on  the  argument  and  not  denied,  tendered  a  quarter's 
rent  a  day  or  two  before  it  was  due ;  but  this  was  no  prejudice  to  the 
demandant.  And  it  is  quite  certain  that  the  rent  would  not  have  been 
received,  if  it  had  been  tendered  on  the  day  when  it  was  payable;  for 
the  demandant,  as  his  counsel  admits,  (and  as  we  know  judicially,) 
had  then  an  action  pending  for  the  supposed  breach  of  another  con- 
dition of  the  lease,  for  which  he  claimed  the  forfeiture.  See  Atkins 
V.  Chilson,  9  Met.  52.  The  demandant,  therefore,  could  not  have 
accepted  rent  without  defeating  his  action,  as  such  an  acceptance  would 
amount  to  a  waiver  of  the  forfeiture. 

We  are  therefore  of  opinion  that  the  rule  adopted  at  the  trial  should 
be  made  absolute,  with  some  enlargement,  however,  of  thr  terms. 
We  think  the  tenant  is  bound  to  pay  all  the  rent  now  in  arrear,  with 
interest;  for  although  the  demandant  has  no  legal  right  to  interest, 
(it  being  admitted  that  all  the  rent,  except  for  one  (|uarter.  has  been 
duly  tendered  to  him.)  yet  he  has  an  equitable  claim,  as  the  tcn.'uit. 
no  doubt,  has  had  the  use  of  the  money.  For  he  must  have  kni)\\n 
that  the  money  would  not  be  demanded  of  him;  and  tlu-  ])resnm])ii()n 
is  that  it  was  used  by  him. 

The  sum  due  to  the  demandant  being  ascertained  according  to  this 
modification  of  the  rule,  the  further  ])roceedings  in  the  ease  are  to  I)c' 
stayed,  on  payment  of  the  sum  due.  with  costs,  or  by  brinj^ing  the 
same  into  court  for  the  demandant's  acceptance.  (See  St.  1<S47.  c. 
267,  sec.  1.) 


220  MISCELLANEOUS.  (Part,  o 

WIERICH  V.  DE  ZOYA. 

(Supreme  Court  of  Illinois,  18-15,  7  111.  385.) 

Caton,  J.     The  bill  shows,  that  the  complainant  was  served  with  a 
garnishee  process   in  an  attachment   suit,   in   which  the   present   de- 
fendants were  plaintiffs  and  one  McCormick  was  defendant,  in  which 
a  judgment  was  perfected  against  the  present  complainant  as  a  debtor 
of  McCormick,  to  whom  in  fact  he  was  not  indebted,  and  that  he 
might  have  successftilly  defended  himself  against  the  said  proceedings, 
had  he  attended  and  made  defence.     The  reason  assigned  in  the  bill 
for  not  attending  to  the  suit  is,  that  after  the  issuing  of  the  sci.  fa., 
which  was  sued  out  on  the  conditional  judgment,  and  before  the  re- 
turn day  of  the  sci.  fa.,  Wierich  was  directed  by  Byers,  one  of  the 
plaintiffs  in  the  attachment,  to  pay  the  demand  which  they  were  pur- 
suing by  their  attachment  to  one  Sherrill,  to  whom  he  was  satisfied  it 
was    due    instead    of    McCormick,    and    that    he    w^ould    dismiss    the 
garnishee  proceedings  against  them  and  pay  the  costs.     Relying  upon 
this  assurance  of   Byers,  the  garnishee  paid  no  further  attention  to 
the  matter,  but  that  in  violation  of  that  arrangement,  the  plaintiffs  in 
the  attachment  suit  fraudulently  proceeded  and  perfected  their  judg- 
ment against  the  garnishee,  and  threaten  to  collect  the  same ;  that  ac- 
cording to  the  direction  of  Byers,  the  complainant  had  paid  the  demand 
to  Sherrill.     The  bill  prays  a  perpetual  injunction.     A  demurrer  was 
sustained  to  the  bill,  and  the  bill  dismissed. 

The  only  question  to  be  determined  is,  whether  the  bill  shows  suf- 
ficient upon  its  face  to  entitle  the  party  to  the  injunction.  We  are 
clearly  of  the  opinion  that  it  does.  The  demurrer  admits  the  truth 
of  the  statements  in  the  bill,  and  they  present  a  clear  case  of  fraud. 
The  defendants  have  taken  advantage  of  their  own  wrong  in  obtain- 
ino-  the  judgment  at  law.  I  hardly  know  where  we  are  to  look  for  a 
stronger  case.  After  the  proceeding  had  been  commenced  against  the 
complainant,  Byers,  one  of  the  plaintiffs  in  that  suit,  investigated  the 
title  to  the  note,  the  amount  of  which  they  were  seeking  to  recover,  and 
being  convinced  that  it  belonged  to  Sherrill,  advised  Wierich  to  pay 
it  to  him,  which  was  accordingly  done.  At  the  same  time,  also,  he  as- 
sured him  that  he  would  dismiss  the  garnishee  proceedings  against  him, 
and  pay  the  costs.  If  this  were  not  sufficient  to  justify  Wierich  in  pay- 
ing no  further  attention  to  that  proceeding,  it  is  not  for  the  party,  who. 


Cli.    11.)  MISCELLANEOUS.  221 

by  fair  promises,  induced  him  to  attend  no  further  to  the  proceeding 
by  assurances  that  it  should  be  dismissed,  to  accuse  him  of  neghgence. 
If  the  complainant  was  too  confiding,  it  is  not  for  the  party  who  has 
betrayed  that  confidence  to  reproach  him  with,  or  take  advantage  of  it. 
He  lulled  the  present  party  into  security,  by  assurances  that  he  would 
do  what  it  was  but  just  that  he  should  have  done,  and  then,  in  his  ab- 
sence, and  in  violation  of  his  agreement,  took  a  judgment  to  which 
he  knew  he  was  not  entitled ;  and  then,  when  called  upon  to  release  it, 
said  that  he  had  made  over  his  interest  to  his  co-plaintiff  in  that  suit, 
and  hence  he  could  do  nothing  about  it.  De  Zoya,  when  called  upon 
for  the  same  purpose,  excuses  himself  for  insisting  upon  payment 
of  the  judgment,  by  saying  he  knows  nothing  about  it.  If  he  did  not 
participate  in  the  original  fraud,  by  insisting  upon  its  fruits  he  be- 
comes a  party  to  it.  He  cannot  excuse  himself  as  being  a  bona  fide 
purchaser  of  the  interest  of  his  co-plaintifif,  who  actually  committed  the 
fraud.  It  having  been  committed  by  one  of  the  parties  to  the  judgment, 
it  is  as  much  tainted  as  if  all  the  parties  had  participated  in  the 
fraudulent  practices  and  design. 

Where  a  judgment  is  obtained  by  fraud  or  accident,  without  any 
fault  or  negligence  on  the  part  of  defendant,  a  Court  of  Equity  will 
aflford  relief,  either  by  opening  the  case,  and  allowing  the  party  an 
opportunity  of  another  trial,  or  by  a  perpetual  injunction.  (Buck- 
master  V.  Grundy,  3  Gil.  R.  631  ;  Owens  v.  Ranstead,  22  111.  R.  168.) 
In  case  a  new  trial  is  awarded,  whether  it  should  be  sent  back  to  the 
Court  of  Law  to  be  tried  again,  as  seems  to  be  the  practice  in  Ken- 
tucky, or  whether  the  Court  of  Chancery  will  proceed,  having  thus 
obtained  jurisdiction  of  it,  and  make  such  a  disposition  as  the  real 
rights  of  the  parties  require,  we  do  not  now  propose  to  determine. 
In  this  case  that  question  does  not  arise,  for  here  is  a  clear  case 
presented  in  the  bill,  requiring  a  perpetual  injunction.     .     .     . 


HAMILTON  v.  McLEAN. 

(Supreme  Court  of  Missouri.  1897.  i:i9  Mo.  078,  41  S.  W.  224.) 

Burgess,  J.  This  is  a  proceeding  in  equity  by  which  ])laintirf 
seeks  to  set  aside  a  decree  of  partition,  rendered  by  the  circuit  court 
of  Buchanan  county  in  pursuance  of  mandate  of  the  Supreme  Court. 


222  MISCELLANEOUS.  (Part.  3 

The  petition,  leaving  off  the  formal  parts,  is  as  follows :     .     .     . 

Whatever  the  rule  may  be  elsewhere,  it  is  well  settled  in  this  State 
in  order  that  a  judgment  may  be  made  set  aside  for  fraud  in  a  direct 
proceeding  for  that  purpose  it  must  be  made  to  appear  that  fraud  was 
practiced  in  the  7'cry  act  of  obtaining  the  judgment.  Lewis  v.  Wil- 
liams, Adm'r.  of  Henry,  54  Mo.  200. 

Payne  v.  O'Shea,  84  Mo.  129,  was  a  bill  in  equity  to  enjoin  and 
restrain  the  enforcement  of  a  judgment  obtained  before  a  justice  of 
the  peace  and  asking  for  a  settlement  and  accounting  between  the 
parties,  and  it  was  held  that  while  a  judgment  may  be  set  aside  in  equity 
for  fraud,  the  fraud  must  be  in  the  procurement  of  the  judgment, 
and  not  merely  fraud  in  the  cause  of  action  on  which  the  judgment 
is  founded,  and  which  could  have  been  interposed  as  a  defense,  unless 
its  interposition  as  a  defense  was  prevented  by  the  fraud  of  the  adverse 
party.  That  case  was  followed  and  approved  in  Murphy  v.  DeFrance, 
101  Mo.  151,  in  which  is  quoted  with  approval  the  following  from 
Freeman  on  Judg.  (3  Ed.),  sec.  489:  "The  fraud  for  which  a 
judgment  may  be  vacated  or  enjoined  in  equity  must  be  in  the  pro- 
curement of  the  judgment.  If  the  cause  of  action  be  vitiated  by  fraud, 
this  is  a  defense  which  must  be  interposed,  and  unless  its  interposition 
be  prevented  by  fraud,  it  cannot  be  asserted  against  the  judgment." 
The  court  also  said  "courts  of  equity  do  not  grant  such  relief  for  the 
purpose  of  giving  a  defeated  party  a  second  opportunity  to  be  heard 
on  the  merits  of  his  defense ;  and  the  relief  is  confined  to  those  cases 
where  the  judgment  is  procured  by  fraud  or  through  excusable  mis- 
take or  unavoidable  accident."  See,  also,  Murphy  v.  DeFrance,  105 
Mo.  53 ;  Oxley  Stave  Co.  v.  Butler  Co.,  121  Mo.  614. 

The  same  question  was  before  the  Supreme  Court  again  in  Nichols 
V.  Stevens,  123  Mo.  96,  and  it  was  held  that  in  order  that  a  judgment 
may  be  set  aside  upon  the  ground  of  its  having  been  obtained  by  fraud 
it  must  appear  that  the  judgment  was  "concocted  in  fraud;  that  fraud 
was  practiced  in  the  very  act  of  obtaining  the  judgment.  The  fraud 
in  such  case  must  be  actual  fraud  as  contradistinguished  from  a  judg- 
ment obtained  on  false  evidence  or  a  forged  instrument  on  the  trial." 
See,  also.  Moody  v.  Peyton,  135  Mo.  482;  1  Bigelow  on  Fraud,  pp. 
86,  87;  Ward  v.  Southfield,  102  N.  Y.  287. 

"The  docrtine  is  equally  well  settled  that  the  court  will  not  set 
aside  a  judgment  because  it  was  founded  on  a  fraudulent  instrument, 
or  perjured  evidence,  or  for  any  matter  which  was  actually  presented 


Cll.    11.)  MISCELLANEOUS.  223 

and  considered  in  the  judgment  assailed."     .     .     .     That  the  mischief 
of  re-trying  every  case  in  whicli  the  judgment  or  decree  rendered  on 
false  testimony,  given  by  perjured  witness,  or  on  contracts  or  docu- 
ments whose  genuiness  or  validity  was  in  issue,  and  which  are  after- 
ward ascertained  to  be   forged   was  in   issue,   and   which  are   after- 
ward ascertained  to  be  forged  or   fraudulent,  would  be  greater,  by 
reason  of  the  endless  nature   of   the   strife,   than   any  compensation 
arising   from   doing  justice   in   individual   cases."      United    States   v. 
Throckmorton,  98  U.  vS.  61.     In  that  case  there  is  also  quoted  with 
approval   the    following    from    Wells    on    Res    Adjudicata,    sec.    499. 
"Fraud  vitiates  everything,  and  a  judgment  equally  with  a  contract, 
that  is.  a  judgment  obtained  directly  by  fraud,  and  not  merelv  a  judg- 
ment founded  on  a  fraudulent  instrument ;  for.  in  general,  the  court 
will  not  go  again  into  the  merits  of  an  action  for  the  purpose  of  detect- 
ing and  annulling  the   fraud.     .     .     .     Likewise,  there  are   few   ex- 
ceptions to  the  rule  that  equity  will  not  go  behind  the  judgment  to  in- 
terpose in  the  cause  itself,  but  only  when  there  was  some  hindrance 
beside  the  negligence  of  the  defendant,  in  preventing  the  defense  in 
the  legal  action. 

While  the  petition  shows  that  the  deed  in  question  was  assailed  by 
plaintiff  in  the  partition  suit  on  the  ground  of  its  having  been  obtained 
by  Mrs.  McLean  and  Mrs.  Bates  by  fraud  and  that  that  question  was 
decided  adversely  to  him,  he  now  undertakes  by  this  action  to  escape 
the  legal  consequence  flowing  from  the  result  of  that  adjudication,  by 
averring  that  the  deed  was  a  forgery,  which  defendants  knew,  and 
which  he  did  not  learn  until  the  determination  of  that  suit  when  his 
suspicions  were  aroused  by  the  statements  made  by  Mrs.  Bates  whose 
deposition  was  being  taken  in  another  suit.  It  thus  appears  that  plain- 
tiff was  afforded  an  opportunity  of  showing  that  the  deed  was  a  forgery 
upon  the  trial  of  the  partititon  suit,  and  having  failed  to  do  so 
without  interposition  on  the  part  of  the  defendants  herein,  he  is  not 
entitled  to  have  the  judgment  in  that  case  set  aside  merely  to  give 
him  a  second  opportunity  to  show  that  the  deed  was  a  forgery.     .     .     , 


•^ 

o 


224  MISCELLANEOUS.  (Part. 

COWLS  V.  COWLS. 

t 

(Supreme  Court  of  Illinois,  1846,  8  111.  435.) 

Caton,  J.  This  bill  was  filed  by  Ann  Cowls  against  her  late  hus- 
band for  the  purpose  of  obtaining  the  custody  of  their  children,  and  a 
reasonable  allowance  for  their  support.  Li  a  former  suit  between 
the  same  parties,  Mrs.  Cowls  had  obtained  a  divorce  from  the  present 
plaintiff,  but  in  that  decree  no  provision  was  made  in  relation  to  the 
children.  There  were  two  children  living  at  the  time  the  decree 
was  entered,  Mary  Jane,  aged  six  and  Thomas,  aged  four  years.  Th(; 
reasons  assigned  in  the  bill  why  they  should  not  longer  be  allowed  to 
remain  with  their  father,  and  which  are  not  denied  by  him,  but  ai'ie 
admitted  by  his  demurrer,  are,  that  since  the  time  when  the  divorce 
was  granted,  he  had  lived  in  a  state  of  fornication  with  a  woman, 
until  within  a  few  weeks  of  the  time  when  this  bill  was  filed,  when 
he  married  her.  That  she  was  a  woman  of  notoriously  bad  character, 
and  not  in  any  way  qualified  for  the  care  and  education  of  the  children. 
That  they  are  now  left  entirely  under  her  care,  and  the  influence  of 
her  bad  example.  That  he  neglects  them  and  is  addicted  to  excessive 
and  frequent  intoxication.  That  he  is  in  the  habit  of  quarreling  with 
his  present  wife,  in  the  presence  of  the  children  and  driving  her 
from  the  house.  That  he  is  in  the  habitual  use  of  profane,  indecent, 
immoral  and  vulgar  language,  as  well  in  the  presence  of  the  children 
as  elsewhere.  For  these  reasons  the  court  decreed  that  the  children 
should  be  taken  from  the  father,  and  placed  in  the  custody  of  the 
mother,  and  the  court  also  allowed  for  their  support  thirty  dollars 
per  annum  each,  for  the  period  of  five  years,  to  be  paid  by  the  de- 
fendant. 

The  power  of  the  court  of  Chancery  to  interfere  with  and  control, 
not  only  the  estates  but  the  persons  and  custody  of  all  minors  within 
the  limits  of  its  jurisdiction,  is  of  very  ancient  origin,  and  cannot  now 
be  questioned.  This  is  a  power  which  must  necessarily  exist  some- 
where, in  every  well  regulated  society,  and  more  especially  in  a  re- 
publican government,  where  each  man  should  be  reared  and  educated 
under  such  influences  that  he  may  be  qualified  to  exercise  the  rights  of 
a  freeman  and  take  part  in  the  government  of  the  country.  It  is  a 
duty,  then,  which  the  country  owes  as  well  to  itself,  as  to  the  infant,  to 
see  that  he  is  not  abused,  defrauded  or  neglected,  and  the  infant  has 


Cll.    11.)  MISCELLANEOUS.  22o 

a  right  to  this  protection,  \\hilo  a  father  so  conducts  himself  as  not 
to  violate  this  right,  the  court  will  not  ordinarily  interfere  with  his 
parental  control.  If.  however,  hy  his  neglect  or  his  abuse,  he  shows 
himself  devoid  of  that  affection,  which  is  supposed  to  qualify  him 
better  than  any  other  to  take  charge  of  his  own  offspring,  the  court 
may  interfere,  and  take  the  infant  under  its  own  charge,  and  remove 
it  from  the  control  of  the  parent,  and  place  il  in  the  custody  of  a 
proper  person  to  act  as  guardian,  who  may  be  a  stranger. 

Infants  thus  taken  under  the  charge  of  the  court  of  Chancer}-  for 
the  protection  of  their  persons  and  property,  are  called  wards  of  the 
court,  and  the  guardian,  or  person  appointed  by  the  court  to  act  as 
guardian,  is  an  ofificer  of  the  court  and  is  entirely  under  its  direction 
and  control,  and  entitled  to  its  aid  in  enforcing  a  proper  obedience 
and  submission  on  the  part  of  the  ward,  and  to  prevent  the  improper 
interference  of  third  persons.  A  jinnsdiction  thus  extensive,  and  liable 
as  we  have  seen,  to  enter  into  the  domestic  relations  of  every  family 
in  the  community,  is  necessarily  of  a  very  delicate,  and  often  of  a  very 
embarrassing  nature ;  and  yet  its  exercise  is  indispensable  in  every 
well  governed  society.  It  is  indispensably  necessary  to  protect  the 
persons  and  preserve  the  property  of  those  who  are  unable  to  protect 
and  take  care  of  themselves. 

It  becomes  clear,  then,  that  our  Legislature,  b\-  ])roviding  that 
"when  a  divorce  shall  be  decreed,  it  shall  and  may  be  lawful  for  the 
court  to  make  such  order  touching  the  alimony  and  maintenance  of 
the  wife,  the  care,  custody  and  support  of  the  children,  or  any  of 
them,  as  from  the  circumstances  of  the  parties  and  the  nature  of  the 
case  shall  be  fit,  reasonable  and  ju.st,"  has  conferred  no  new  authority 
or  jurisdiction  upon  the  court.  It  was  by  its  original  jurisdiction 
clothed  with  the  same  powers  before. 

The  cases  provided  for  in  this  statute  are  necessarily  embraced  ui 
that  broad  and  comprehensive  jurisdiction  with  whicli  the  Court  of 
Chancery  is  vested,  over  the  pensons  and  estates  of  infants  and  tluir 
parents  who  are  bound  for  their  maintenance.  To  apply  thest'  ])rni- 
ciples  to  the  case  before  us.  What  are  its  circumstances?  After  a 
divorce  had  been  flecreed  between  the  jiarlies.  without  making  any 
provision  as  to  the  care,  custody,  or  maintenance  (»l  tlie  children. 
the  mother  liles  a  bill,  and  asks  that  the  custody  of  the  children  shall 
be  taken  from  the  father  for  the  reasons,  thai  he  has  lor  some  time 
been  living  with  a  jjrostitule,  whom  he  has   fmallx    married,  .iixl   that 


226  MISCELLANEOUS.  (Part.  3 

the  children,  who  are  of  tender  age,  are  left  principally  under  her 
control,  and  pernicious  example  and  influence ;  that  he  is  very  in- 
temperate in  his  habits,  profane,  and  is  in  the  habit  of  using  vulgar  and 
obscene  language  in  the  presence  of  his  family  and  these  children. 
Here  we  have  grouped  together  into  one  disgusting  and  revolting 
picture,  those  features  of  a  father's  character  who  has  become  un- 
worthy of  the  charge  of  his  own  offspring,  and  any  one  of  which,  as 
we  have  seen  it  laid  down  by  Mr.  Justice  Story,  will  authorize  the 
court  in  its  discretion,  to  interfere  and  remove  the  child  without  the 
influence  of  such  a  polluted  atmosphere.  Under  such  circumstances, 
if  these  children  are  allowed  to  remain  with  their  father,  it  is  im- 
possible to  expect  that  they  will  be  properly  reared  and  educated. 
It  would  be  too  much  to  hope  that  they  will  not  be  affected  and  pol- 
luted by  the  pernicious  examples  constantly  before  them.  We  can- 
not doubt  but  a  due  regard  for. the  well  being  of  these  children  re- 
quires the  court  to  take  them  under  its  own  care  and  control.     .     .     . 


GORMAN  V.  MULUNS. 

(Supreme  Court  of  Illinois,  1898,  172  111.  349,  50  N.  E.  222.) 

Craig,  J.  The  only  question  involved  in  this  case  is,  did  the  Su- 
perior Court,  under  the  evidence,  have  power  to  authorize  a  sale  of 
the  real  estate  described  in  the  bill  of  complaint,  held  in  trust  for  the 
minors,  Robert  Gorman  and  Mary  Mullins,  and  the  re-investment  of 
the  proceeds? 

The  prevailing  doctrine  in  England  appears  to  be,  that  courts  of 
equity  have  no  power,  by  virtue  of  their  general  jurisdiction  over 
minors,  to  order  the  sale  of  a  minor's  real  estate  for  the  purpose  of 
education,  maintenance  or  investment ;  but  many  of  the  courts  of  this 
country  have  refused  to  follow  the  English  rule,  and  have  held  "that 
where  it  is  for  the  benefit  of  the  minor,  courts  of  equity  have  the  power, 
by  virtue  of  their  general  jurisdiction  over  the  estates  of  minors  and 
others  under  disability,  to  authorize  a  change  from  real  to  personal 
and  from  personal  to  real."  (Huger  v.  Huger,  3  Dessaus.  18;  In  re 
Salsbury,  3  Johns.  Ch.  347).  In  Snowhill  v.  Snowhill,  3  N.  J.  Eq. 
20,  the  court  said:  "Courts  of  equity  may,  and  not  infrequently  do, 
change  the  character  of  property.    They  will  permit  trustees  or  guar- 


Cll.    11.)  MISCELLANEOUS.  2ll7 

dians  to  do  it  when  it  is  manifestly  for  the  advantage  of  the  infant. 
They  will  convert  the  property  of  a  lunatic  from  real  into  personal 
for  his  interest, — and  this  has  frequently  been  done  without  reference 
to  the  contingent  interests  of  real  or  personal  representatives."  In 
Smith  v.  Sackett,  5  Gilm.  534.  this  court  said  (p.  545)  :  "The  juris- 
diction of  the  court  of  chancery  to  order  the  sale  of  the  whole  or  a 
portion  of  the  estate  of  an  infant,  or  to  order  it  to  he  encumbered  by 
mortgage,  whenever  the  interest  of  the  infant  demands  it.  will  not 
be  denied,  whether  that  interest  be  of  a  legal  or  an  equitable  nature." 
The  authorities  on  this  question  were  thoroughly  reviewed  in  the 
case  of  Hale  v.  Hale,  146  111.  227,  which  involved  large  property  in- 
terests. It  was  there  said  (p.  253)  :  "We  need  therefore  only  add,  that 
the  power  of  courts  of  chancery,  by  virtue  of  their  general  jurisdiction 
over  the  estates  of  infants,  to  authorize  the  conversion  of  their  real 
estate  into  personal,  where  it  is  clearly  for  their  interest  that  such  con- 
rent  of  authority  in  this  country,  but  is  so  thoroughly  settled  by  the 
former  decisions  of  this  court  as  to  be  no  longer  an  open  question 
version  should  be  made,  is  not  only  supported  by  the  general  cur- 
in  this  State."     .     .     . 

The  decree  finds,  from  the  evidence,  that  the  land  is  improved  with 
several  dwelling  houses,  which,  at  the  time  of  the  death  of  the  tes- 
tator, Dennis  S.  Mullins,  were  of  the  rental  value  of  $250  per  month, 
but  which  are  now  of  no  rental  value  whatever;  that  the  part  of  the 
city  of  Chicago  in  which  said  land  is  situated  has  changed,  since  the 
death  of  the  testator  from  a  first-class  residence  district  into  a  very 
poor  residence  district ;  that  the  value  of  said  land  has  decreased  great- 
ly since  testator's  death,  and  is  liable  to  decrease  still  more  before  said 
minors  arrive  at  their  majority ;  that  said  land  is  now  of  the  fair  cash 
value  of  $15,000,  and  that  it  is  for  the  interest  of  all  parties  to  the 
suit  that  said  land  be  sold  and  its  proceeds  invested  in  interest -bearing 
securities;  that  under  the  terms  of  the  will  the  title  to  said  lands  is 
vested  in  complainants,  as  trustees,  in  fee ;  that  the  only  persons  now 
interested  in  said  trust  are  the  respective  complainants  and  defendants, 
and  that  it  is  for  the  best  interest  of  all  the  parties  thereto  that  said 
lands  be  sold  and  the  proceeds  derived  from  such  sale  be  held  in 
place  of  said  lands  and  invested  by  the  complainants,  subject  to  the 
same  trust  upon  which  the  lands  arc  now  held  by  them.  The  decree 
carefully  protects  the  rights  of  the  nn'nors  by  rc'(|uiring  a  bond,  and 
the  court  reserves  to  itself  the  power  to  give  further  directions  at  any 


228  MISCELLANEOUS.  (Part. 


time,  for  the  proper  accounting  for  such  proceeds  by  said  trustees. 
From  the  evidence  recited  in  the  decree  it  is  apparent  that  the  holding 
of  the  property  will  be  disastrous  to  the  minors,  as  it  has  decreased 
in  value  since  the  testator's  death  and  is  still  decreasing  in  value,  while 
it  has  no  rental  value  whatever.  After  a  careful  examination  of  the 
evidence  as  recited  in  the  decree  we  are  satisfied  that  it  is  manifestly 
for  the  interest  of  the  minors  that  the  conversion  of  the  property 
should  be  made,  and  that  the  Superior  Court,  in  the  exercise  of  its 
chancery  jurisdiction,  properly  authorized  the  change  to  be  made.     .     . 


CARMICHAEL  v.  LATHROP. 

(Supreme  Court  of  Michigan,  1896,  108  Mich.  473,  66  N.  W.  350.) 

Hooker,  J.  .  .  .  The  complainant  files  the  bill  in  this  cause, 
alleging  that  the  lands  conveyed  by  the  testator  to  her  two  sisters 
should  be  treated  as  ademptions  of  their  respective  legacies,  and  that 
they  should  be  required  to  account  to  her  for  her  share  thereof.  She 
alleges  that  her  father  so  intended,  and  that  they  recognized  the  justice 
thereof,  and  promised  to  see  that  she  received  the  same,  and  relying 
upon  such  promises,  she  consented  to  the  settlement  of  the  estate,  ex- 
pecting that  her  sisters  would  pay  her  an  amount  equal  to  her  share  of 
said  parcels  so  received  by  them.     .     .     . 

The  case  is  one  where  it  is  claimed  that  a  gift  of  personal  property 
by  will  may  be  satisfied  by  a  conveyance  of  land,  when  such  is  the  clear 
intention  of  the  testator. 

If  a  person  should  bequeath  to  another  a  sum  of  money,  and  previous 
to  his  (the  testator's)  death,  should  pay  to  such  person  the  same 
amount,  upon  the  express  understanding  that  it  was  to  discharge  the 
bequest,  the  legacy  would  be  thereby  adeemed.  But,  in  the  absence 
of  an  apparent  or  expressed  intention,  that  would  not  ordinarily  be  the 
effect  of  the  payment  of  a  sum  of  money  to  a  legatee  under  an  existing 
will.  Generally,  such  payment  would  not  afifect  the  legacy.  To  this 
rule  there  is  an  exception,  where  the  testator  is  a  parent  of  or  stands 
to  the  legatee  in  loco  parentis.  In  such  case  the  payment  would  be 
presumed  to  be  an  ademption  of  the  legacy.  At  first  blush  this  im- 
presses one  as  an  unreasonable  rule,  as  it  puts  the  stranger  legatee 
upon  a  better  footing  than  the  testator's  own  son,  and  judges  and  law- 


Cll.    11.)  MISCELLANEOUS.  22\j 

writers  have  severely  condemned  the  rale.  See  2  Story,  Eq.  Jur. 
sees.  1110-1113.  It  has  been  said  that  "this  rule  has  excited  the  regret 
and  censure  of  more  than  one  eminent  modern  judge,  though  it  has 
met  with  approbation  from  other  high  authorities."  2  Williams,  Ex'rs 
(7th  Am.  Ed.)  *1194.  Story's  condemnation  of  it  is  strong,  but  he 
adds,  "We  must  be  content  to  declare,  'Ita  lex  scripta  est.'  It  is  es- 
tablished, although  it  may  not  be  entirely  approved."  And  Worden, 
J.,  in  Weston  v.  Johnson,  48  Ind.  5,  says,  "Whatever  may  be  thought 
of  the  doctrine,  it  is  thoroughly  established  in  English  and  American 
jurisprudence."     .     .     . 

There  are  cogent  reasons  in  support  of  the  rule  stated, — i.  e.,  that 
payment  to  a  son  adeems  the  legacy,— which  is  based  on  the  theory 
that  such  legacy  is  to  be  considered  as  a  portion,  and  that  the  father's 
natural  inclination  to  treat  his  children  alike  renders  it  more  probable 
that  his  payment  was  in  the  nature  of  an  advancement  than  a  dis- 
crimination in  favor  of  one,  oftentimes  the  least  worthy.  Double 
portions  were  considered  inequitable,  and  upon  this  the  doctrine  rests. 
Suisse  V.  Lowther,  2  Hare,  424,  433. 

While  the  authorities  are  a  unit  that  a  legacy  by  one  in  loco  parentis 
will  be  adeemed  by  payment,  in  the  absence  of  an  apparent  or  ex- 
pressed intent  to  the  contrary,  the  doctrine  was  early  restricted. 
Among  other  limitations  was  the  rule  that  the  presumption  could  not 
be  applied  to  a  residuary  bequest,  because  the  court  would  not  pre- 
sume that  a  legacy  of  a  residue,  or  other  indefinite  amount,  had  been 
satisfied  by  an  advancement,  as  the  testator  might  be  ignorant  whether 
the  benefit  that  he  was  conferring  equaled  that  which  he  had  already 
willed.  Freemantle  v.  Bankes,  5  Ves.  85;  Clendening  v.  Clymer,  17 
Ind.  155;  2  Story,  Eq.  Jur.  sec.  1115.  This  exception  fell  with  the 
discarding  of  the  rule  that  satisfaction  must  be  in  full.  Pym  v.  Lock- 
yer,  5  Mylne  &  C.  29;  Montefiore  v.  Gtiedalla,  1  De  Gex,  F.  &  J.  93. 
Again  it  was  held  that  it  could  not  be  applied  unless  the  advancement 
was  ejusdem  generis  with  the  legacy.     See  2   Story   Eq.   Jur.   sec. 

1109. 

There  can  be  no  doubt  that  a  testator's  conveyance  of  real  prop- 
erty may  constitute  an  ademption,  if  he  so  intends  it,  e.  g.,  where  he 
expresses  the  intent  in  the  conveyance,  and  possibly  in  other  ways. 
If  so,  the  only  significance  of  the  doctrine  ejusdem  generis  is  its 
eflfect  upon  the  presumption.  The  doctrine  that  the  property  conveyed 
must  be  ejusdem  generis  appears  to  be  the  only  ground  upon  which 


230  MISCELLANEOUS.  (Part.  3 

it  can  be  said  that  the  conveyance  in  this  case  should  not  be  treated 
as  satisfaction  pro  tanto.     It  has  been  said  in  early  cases  that  "when 
the  gift  by  will  and  the  portion  are  not  ejusdem  generis,  the  presump-  ' 
Hon  zvill  be  repelled.    Thus,  land  will  not  be  presumed  to  be  intended 
as  a  satisfaction  for  money,  nor  money  for  land."  Bellasis  v.  Uthwatt, 
1  Atk.  428 ;  Goodf ellow  v.  Burchett,  2  Vern.  298 ;  Ray  v.  Stanhope,  2 
Ch.  R.  159;  Saville  v.  Saville,  2  Atk.  458;  Grave  v.  Earl  of  Sahsbury, 
1  Brown,  Ch.  425.     But  see  Bengough  v.  Walker,  15  Ves.  507.  The 
courts   have   not   accepted   without   protest   the   proposition   that   the 
application  of  the  presumption  arising  from  the  relation  of  parent  and 
child  should  depend  upon  the  similarity  of  the  property  willed  and 
donated,  and  it  has  been  asked  "why,  if  a  gift  of  a  thousand  dollars 
will  satisfy  a  legacy  of  that  amount,  it  should  not  equally  be  satisfied 
by  a  donation  of  lands  of  equal  value."     And  see  Pym  v.  Lockyer, 
5  Mylne  &  C.  44.    But  all  agree  that  ademption  is  a  matter  of  intent. 
In  Jones  v.  Mason  5  Rand.   (Va.)   577,  the  court  said,  "This  whole 
class  of  cases  depends  upon  the  intention;"  citing  Hoskins  v.  Hos- 
kins.  Free.  Ch.  263,  and  Chapman  v.  Salt,  2  Vern.  646.    Again,  it  was 
said:   "It  is  laid  down  generally  that  a  residuary  legacy  will  not  adeem 
a  portion  due  under  a   settlement,  because  it   is   entirely  uncertain 
what  that  legacy  may  be.     But  this  rule,  like  the  rest,  yields  to  inten- 
tion ;"  citing  Rickman  v.  Morgan,  1  Brown,  Ch.  63,  2  Brown,  Ch.  394. 
In  Bengough  v.  Walker,  15  Ves.  507,  it  was  held  that  a  bequest  of  a 
share  in  powder  works,  charged  with  an  annuity,  was  a  satisfaction 
of  a  portion  of  2,000  pounds,  when  it  was  so  intended.     See,  also, 
Gill's  Estate,  Pars.  Eq.  Cas.  139.     It  is  forcefully  argued  that  these 
cases  make  obsolete  the  doctrine  of  ejusdem  generis.     Whether  they 
do  or  not,  they  certainly  show  that  it  must  yield  to  the  testator's  in- 
tent.    We  cannot,  therefore,  accede  to  the  proposition  of  counsel  for 
the  defendants  "that  conveyance   of   real  estate   will   not  be   held  a 
satisfaction  of  any  legacy,  in  whole  or  in  part,  even  though  the  intent 
of  the  testator  is  clear."     ,     .     . 


STRONG  V.  WILLIAMS. 

(Supreme  Court  of  Massachusetts,  1815,  12  Mass.  391.) 

The  plaintiff  declared  in  debt  upon  a  bond  made  to  her  by  Wood- 
bridge   Little,   Esquire,   the   defendant's   testator,   dated   the    18th   of 


Ch.    11.)  MISCELLANEOUS.  23l 

August.  1800,  conditioned  to  pay  her  $200  within  one  month  after  her 
marriage,  if  such  event  should  take  place  in  the  lifetime  of  the  obligor, 
or  that  his  heirs,  executors,  or  administrators  should  pay  her  $333.33 
within  six  months  after  his  decease.     .     .     . 

On  the  20th  of  March,  1813,  the  said  testator  made  his  last  will, 
which  was  approved  after  his  decease,  and  of  which  the  defendant  is 
executor;  and,  on  the  21st  of  June  following,  the  testator  died,  leaving 
neither  wife  nor  issue.  In  the  said  will,  the  said  testator,  in  considera- 
tion of  the  long,  faithful,  friendly,  and  meritorious  services  of  the 
plaintiff,  both  to  himself  and  his  then  late  beloved  wife,  bequeathed  to 
her  his  household  furniture,  with  sundry  other  valuable  chattels,  $300 
in  cash,  and  also  the  use  of  his  homestead  for  six  months,  or  half  the 
rents  thereof  for  the  first  twelve  months  after  his  decease,  at  her  elec- 
tion. 

The  specific  articles  so  bequeathed  were  of  the  value  of  $745.84, 
and  the  rent  of  the  said  homestead  for  six  months  was  equal  to  $50 ; 
all  of  which  the  plaintiff  had  received,  together  with  the  said  -cash 
legacy.  The  amount  of  the  testator's  estate  and  credits  was  $3346.66, 
and  of  the  legacies,  payable  in  money,  $2200.  All  the  residue  of  his 
estate,  after  payment  of  debts  (which  were  of  trifling  amount),  and 
legacies,  he  devised  to  the  corporation  of  Williams  College,  under 
whose  direction  the  defendant  contended  that  the  bond  had  been  sat- 
isfied by  the  payment  of  the  said  legacies  to  the  plaintiff. 

If,  in  the  opinion  of  the  Court,  the  plaintiff  was  entitled  to  recover 
the  sum  due  by  the  bond,  in  addition  to  the  said  legacies,  judgment 
was  to  be  rendered  in  her  favor  upon  the  default  of  the  defendant 
otherwise,  the  plaintiff  was  to  become  nonsuit.     .     . 

Putnam,  J.  The  general  rule  anciently  established  in  chancery 
was,  that,  when  a  testator,  being  indebted,  gave  to  his  creditor  a  legacy 
equal  to,  or  exceeding,  the  amount  of  his  debt,  the  legacy  should  be 
considered  as  a  satisfaction  for  the  debt.  The  rule  has  been  ac- 
knowledged in  later  cases,  but  with  marks  of  disapprobation,  and  a 
disposition  to  restrain  its  operation  in  all  cases  where,  from  circum- 
stances to  be  collected  from  the  will,  it  might  be  inferred  that  the 
testator  had  a  different  intention.  (Haynes  v.  Mico,  1  Bro.  Cha.  Ca. 
131.)  Thus,  where  a  testator  left  a  sufficient  estate,  it  was  determined 
that  he  was  to  be  presumed  to  have  been  kind  as  well  as  just.  So,  if 
the  legacy  was  of  a  less  sum  than  the  debt,  or  of  a  different  nature,  or 
upon  conditions,  or  not  equally  beneficial  in  some  one  particular,  al- 
though more  so  in  another. 


232  MISCELLANEOUS.  (Part.  3 

All  the  cases  agree  that  the  intention  of  the  testator  ought  to  pre- 
vail ;  and  that,  prima  facie  at  least,  whatever  is  given  in  a  will  is  to 
be  intended  as  a  bounty.  But,  by  later  cases,  the  courts  have  not 
been  disposed  to  understand  the  testator  as  meaning  to  pay  a  debt, 
when  he  declares  that  he  makes  a  gift;  unless  the  circumstances  of 
the  case  should  lead  to  a  different  conclusion.     .     .     . 

But  cases  of  this  nature  must  depend  upon  the  circumstances ;  and 
there  must  be  a  strong  presumption,  to  induce  a  belief  that  the  tes- 
tator intended  the  legacy  as  a  payment,  and  not  as  a  bounty.  (2  Fonbl. 
332).  Thus,  where  the  testatrix  had  given  her  servant  a  bond  for 
20  pounds  free  of  taxes  for  her  life,  and  afterwards  made  her  will  and 
gave  the  servant  20  pounds  per  annum,  payable  half  yearly,  but  said 
nothing  about  the  taxes,  the  court  held  that  both  should  be  paid.  (At- 
kinson V.  Webb,  2  Vern.  478.)  Here  the  legacy,  being  not  quite  so 
beneficial  as  the  debt,  did  not  raise  a  presumption  that  it  was  intended 
as  a  payment. 

•  So,  where  the  testator,  having  sufficient  assets,  and  having  manifest- 
ed great  kindness  for  the  legatee,  gave  a  legacy  of  a  greater  amount 
than  he  owed,  it  was  holden  by  Lord  Chancellor  Cowper,  that  the 
testator  might  be  presumed  to  be  kind  as  well  as  just ;  and  he  decreed 
the  payment  of  the  legacy  as  well  as  the  debt.  (Cuthbert  v.  Peacock, 
1  Salk.  153.)  It  has  been  holden,  that  a  legacy  for  a  less  sum  than  the 
debt  shall  never  be  taken  as  satisfaction;  (1  Salk.  508.)  and  that 
specific  things  devised  are  never  to  be  considered  as  satisfaction  of 
a  debt,  unless  so  expressed.  (2  Eq.  C.  Abr.,  title,  Devises,  pi.  21,  cited 
Bac.  Abr.,  Legacies,  D.)     .     .     . 

In  the  case  at  bar,  the  consideration  for  the  legacy  appears  from  the 
will  to  have  been  for  the  services  of  the  legatee.  A  presumption  that 
the  legacy  was  intended  to  be  a  satisfaction  of  the  bond,  also,  must 
rest  on  the  fact,  that  the  bond  was  given  for  the  same  services ;  of 
which  fact  there  is  no  evidence  before  us.  It  may  have  been  for  a 
dififerent  cause.    We  can  only  presume  that  it  was  for  a  lawful  one. 

It  appears,  also,  from  the  will,  that  the  testator  intended  his  debts 
and  legacies  should  be  paid,  before  his  residuary  legatees  should  take 
any  thing.  The  pecuniary  legacy  to  the  plaintiff,  also,  is  not  so  much 
as  the  debt ;  and,  therefore,  cannot  be  considered  as  a  payment  of  it. 
Neither  is  there  any  declaration  of  the  testator,  that  the  specific  articles 
given  should  be  considered  as  a  satisfaction  of  the  debt.  It  appears, 
also,  that  there  are  sufficient  assets. 


Ch.    11.)     ,  MISCELLANEOUS.  233 

From  a  consideration  of  the  principles  and  decisions  applicable  to 
this  case,  we  are,  therefore,  all  of  opinion  that  the  plaintiff  ought  to 
recover. 

Defendant  defaulted. 


WINSTON  V.  WESTFELDT. 

(Supreme  Court  of  Alabama,  1853,  22  Ala.  700.) 

GoivDTHWAiTE,  J.     The  note  sued  on,  at  the  time  of  the  purchase  by 
Westf eldt,  was  the  subject  of  controversy  in  the  Chancery  Court ;  and 
the  first  question  is,  whether  these  proceedings  operated  as  notice  to 
him;  or,  in  other  words,  does  the  doctrine  of  lis  pendens  apply  to 
negotiable  paper?     This  is  entirely  a  new  question  with  us;  and,  so 
far  as  we  can  learn,  has  never  been  directly  decided  by  any  court.   The 
doctrine,  as  it  prevails  at  this  time,  seems  to  have  had  its  origin  in 
the  common  law  rule  which  obtained  in  real  actions,  where,  if  the 
defendant  aliened  during  the  pendency  of  the  suit,  the  judgment  in 
the  real  action  overreached  the  alienation,  and  the  chancery  ordinance 
of   Lord   Bacon,   which  provided   "that   no   decree   bindeth   any  that 
Cometh  in  bona  fide  by  conveyance  from  the  defendant,  before  the 
bill  is  exhibited,  and  is  made  no  party  by  bill  or  order;  but  when 
he  comes  in  pendente  lite,  and  while  the  suit  is  in  full  prosecution, 
and  without  any  color  of  allowance,  or  privity  of  court,  there  regularly 
the  decree  bindeth.     But  if  there  were  any  intermissions  of  suit,  or 
the  court  made  acquainted  with  the  conveyance,  the  court  is  to  give 
order  upon  the  special  matter  according  to  justice." — Lord  Bacon's 
Works  2  vol.  479. 

From  the  use  of  the  term  "conveyance,"  we  think  that  the  framcr 
of  this  ordinance  had  in  view  its  application  to  real  property  only, 
and  that  it  was  intended  simply  to  operate  as  an  adoption  in  the  Court 
of  Chancery  of  the  common  law  rule  which  we  have  referred  to ;  and 
this  idea  is  supported  by  Mr.  Powell,  who.  in  his  work  on  Mortgages 
(2  vol.  618)  says:  "There  is  no  case  in  which  equity  has  determined 
the  property  in  goods  to  be  affected  by  reason  of  a  lis  pendens,  where 
possession  is  the  principal  evidence  of  ownership,  as  of  personal  chat- 
tels." Chancellor  Kent  also,  while  he  admits  that  the  rule  is  well 
established,  and  applies  it  without  hesitation  to  a  sale  of  bonds  and 
mortgages,  as  being  outside  f)f  tlie  ordinary  course  of  traffic,  and  al- 
ways understood  to  be  subject  to  certain  equities  (Murray  v.  Lylburn, 


234  MISCELLANEOUS.  (Part.  3 

2  Johns.  Ch.  441,  444),  expresses  a  serious  doubt  whether  it  applies 
to  money  or  commercial  paper  not  due,  and  some  question  as  to  its 
appHcation  to  moveable  personal  property — such  as  horses,  cattle, 
grain  etc.  The  Vice-Chancellor,  in  Scudder  v.  Van  Amburgh,  4  Ed. 
Ch.  29,  while  he  "inclines"  to  the  opinion  that  the  rule  applied  to  per- 
sonal property,  admits  that  the  question  is  not  decided.  In  our  own 
court,  in  the  case  of  Boiling  v.  Carter,  9  Ala.  921,  the  rule  was  ap- 
plied to  slaves ;  but  the  weight  of  that  case  as  authority  is  somewhat 
diminished,  by  the  fact,  that  the  point  was  not  made,  and  not  alluded 
to  by  the  court.  It  is,  to  say  the  least,  highly  improbable  that  a  ques- 
tion of  this  novel  and  important  character  should  have  passed  "sub 
silentio,"  had  the  attention  of  the  court  been  directed  to  it. 

The  question  though,  here,  is  not  whether  the  rule  applies  to  personal 
property,  but  whether  it  holds  as  to  negotiable  paper  transferred  be- 
fore maturity.  Lord  Eldon  evidently  doubted  it  in  Jervis  v.  White, 
7  Ves.  413,  414;  and  from  the  cautious  manner  in  which  he  expresses 
himself,  in  the  last  paragraph  of  Hood  v.  Aston,  1  Russ.  412,  more 
than  twenty  years  afterwards,  we  do  not  think  he  had  fully  resolved 
this  doubt.  The  leaning  of  Chancellor  Kent  was  against  it,  on  the 
ground  that  the  safety  of  commercial  dealing  required  a  limitation  of 
the  rule ;  and  it  must  be  acknowledged  that  there  is  great  force  in 
the  reason.  Negotiable  paper,  representing,  as  it  does  in  almost  all 
civilized  nations,  a  very  large  proportion  of  the  commercial  opera- 
tions, and  serving,  to  a  great  extent,  as  the  representative  of  money, 
is  justly  a  favorite  of  the  law,  and  enjoys  immunities  and  privileges 
which  are  extended  to  no  other  species  of  contracts.  The  tendency 
of  the  courts  has  been  to  uphold  this  description  of  paper,  in  the  hands 
of  the  bona  fide  holder,  against  every  species  of  defense  which  might 
exist  as  between  the  original  parties.  The  credit  and  confidence 
due  to  it  must  be  impaired,  if  the  buyer  was  required  to  examine  the 
courts  of  every  county  in  the  State  before  he  could  be  sure  of  his 
purchase;  and  such  would  necessarily  be  the  case,  if  the  doctrine  of 
lis  pendens  applied  to  it.  There  are  no  adjudications  to  force  us  to 
this  extremity;  the  strongest  considerations  of  public  policy  seem  to 
forbid  the  extension  of  the  rule  to  money  or  bank  bills ;  and  we  think 
that  commercial  paper,  as  the  representative  of  money,  should  stand 
on  the  same  footing  in  this  respect.     .     .     . 


LAW  LIFRARY 

UNIVERSITY  0^  CajjeoRNIA 

LOS  ANGELES 


UC  SOUTHERN  REGIONAL  UBWVRYFACILin 


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